Evidence of the Power of Judgment

Clarity. She downright exudes it. No jewelry, no flourishes, nothing fake. Instead of all that there is a focus on the essentials. Structure and openness. Objectivity. No place for vanities – although there is more than enough occasion for it. The German President Joachim Gauck once described her as a “border crosser”; the constitutional lawyer Dieter Grimm fancies her a “person of great sovereignty and independence of mind.” Gertrude Lübbe-Wolff, who is equally at home in jurisprudence and legal practice, has a résumé that could hardly be more impressive.

She is professor of public law at the University of Bielefeld and mother of four; she was a judge on the Federal Constitutional Court for twelve years; for a while she was in administration and led the environmental agency of the city of Bielefeld. Lübbe-Wolff, who took up her legal studies at the age of sixteen, has been awarded the Leibniz Prize of the Deutsche Forschungsgemeinschaft (German Research Foundation) and the Hegel Prize of the City of Stuttgart, and in 2015 she received an honorary doctorate from the European University Institute in Florence.  

Born in 1953, Lübbe-Wolff is the oldest daughter of the philosopher Hermann Lübbe. Her father’s ideas may have impacted her from very early on – at the age of thirteen, accompanying her parents, Lübbe-Wolff attended her first Hegel congress. Henceforth Hegel would be her point of reference, her philosophical mentor, whose insights are well integrated into her certain doctrine of political wisdom. This is particularly evident in her constant admonition “that stable morals are dependent on support from an external framework.” This realization of hers is informed by a wealth of practical experience. In conversation with Lübbe-Wolff, she asserts that she learned more how institutions impact people’s behavior during her tenure at the environmental agency than during her time at the university. In this symbiotic relationship between theory and practice one can recognize a kind of life-world dialectic, if there were such a thing. No question – Hegel shines through at every turn.

But there is yet another thinker whose ideas can be linked with those of Lübbe-Wolff in a subtle way, namely Max Weber. Though not so much in terms of his themes and content as his analytical approach. This unspoken resemblance is due to the intellectual posture she assumes toward objects of her inquiry – the way she sorts and categorizes things. The power of judgment. In service to the cause. Protestantism. Three categories that are inescapable in any understanding of Max Weber’s world of thought – and three categories that have a strong presence in Gertrude Lübbe-Wolff’s work.

The research project that she has brought with her to the Wissenschaftskolleg is a study of the decision-making processes in apex courts. In order to enable careful consideration of the judges’ ruling, specific institutional parameters are required. The Federal Constitutional Court provides for such through extensive deliberations whose objective is a resolution that finds common accord with all the judges.
Where others might see a mere set of procedural rules of an apex court, Lübbe-Wolff perceives a worthwhile cultural asset, namely that of deliberation. She says that in the beginning she was skeptical – that the court’s “pronounced orientation toward consensus” seemed a “willingness to compromise that was alien to the quest for justice” and which was similar to “stage-managing decisions as if they were infallible.” But in the course of her activity as a judge this evaluation failed to prove out. Cooperative decisions possess high integrative potential; this elementary insight changed the views of Lübbe-Wolff. A culture of deliberation, as is to be found in the Federal Constitutional Court, guarantees the court’s impartiality and judiciousness and contributes in the best possible way to the “grounding of all those involved” and the “dissolution of ideologemes.”
The ability to appeal on a constitutional issue, she explains, has deeply impacted Federal German society. She cites for instance the fact that police must deal civilly with refugees – they know that they must adhere to the fundamental provisions, and this conception of themselves has deep social roots. It is in this way that the Federal Constitutional Court acts as “propagator of a consciousness of fundamental rights” and pacifies society. This is what legal philosophers refer to as “constitutional integration.” This is also illustrated by her comparison with apex courts in other countries, for instance the U.S. Supreme Court, whose general “resistance to deliberation” tends to hinder the court’s integrative function and promotes “the splitting of panels into political factions.”

With what other countries and courts can a comparison be drawn? This will emerge in the course of the project. But one thing is clear – Lübbe-Wolff’s practical experience once again informs her theoretical interests. And in this area as well she is far too exact and autonomous to be unduly impressed by the theoretical pre-settings of fashionable scholarship. She doesn’t have what one might call a specific “method.” It is not a matter of conveying regularities, she elaborates, for the field of study is far too complex. In the interviews that she conducts with judges from the highest national and international courts, she works with questionnaires in which she has listed the facts and experiences that she wants to question her interviewees about, but not in any expectation that this should ultimately convey a certain procedure applicable to all courts. How can one then approach the problem? As if the answer is self-evident, Lübbe-Wolff replies: “With the power of judgment!”

And this too recalls Max Weber. The Freiburg political scientist Wilhelm Hennis once ascribed to Weber’s work the central idea of “training the power of judgment” – and this would seem to be a guiding principle for Lübbe-Wolff. Perhaps that is a further parallel to her father, for a focus on the power of judgment springs from an understanding of science that was already crucial to the thought of Hermann Lübbe – himself influenced by the philosopher Joachim Ritter and his adherents – namely philosophy as practical science. Hennis writes that “agents require the power of judgment,” and this is the decisive aspect of that culture of deliberation with which apex courts are imbued. Gertrude Lübbe-Wolff clarifies that it is not a question of “one judge emerging victorious over another” but rather a matter of which parameters afford courts the proper scope to arrive at sensible decisions in conformity with the law. An essential precondition for this is that the particular court not be polarized. One of the goals of her project is to analyze those institutional conditions under which such might be best avoided.

It is thus that we revisit the leitmotif of the institutions – whether in the sphere of environmental protection, in the financial crisis, or in discussion on the TTIP Free Trade Agreement. According to Lübbe-Wolff, institutions are always crucial to the moral conduct of those parties involved and the relevant culture of deliberation. In looking at law in practice, the conclusion to be drawn is that the more deliberative a society is, the more deliberative is its highest court.

Does this have something to do with the notion of deliberative democratic theory – i.e. with the ideal of a democracy where the citizens are included in public discussion of all political themes? Indeed, she says, with respect to the culture of discussion, the Federal Constitutional Court has come a long way. She adds that it is through intensity of the discussion that the positions of participants are taken seriously, they learn from one another, there is scant ideological confrontation, and in the end a decision is always arrived at. Whosoever practices deliberation not for its own sake but for models of deliberation that are truly successful now knows where these can be found, namely in the Federal Constitutional Court.

And there is something else to be learned from Lübbe-Wolff – the extent of a society’s consultation culture also depends on its denominational traditions. For instance the notion that the administration of justice enunciates a certain truth is less present in Protestantism than in Catholicism, which can lead to assorted practices in terms of deliberation. No less important is the conception of humankind upon which a functioning culture of deliberation is based. In our interview Lübbe-Wolff mentions Machiavelli, according to whom legislation ought to be informed by the notion that human nature is essentially evil. She does not hold such an extreme position, but, as she explains, “one must reckon with human fallibility and hence take precautionary measures at the institutional level” – and for her this also means that judges are no exception to the rule, they too are fallible and can be motivated by dysfunctional self-interest, and so as to ensure good morals they too require strong institutions. It would be a mistake, however, to ascribe a pessimistic attitude to Lübbe-Wolff – these views are not undergirded by pessimism but by a healthy skepticism that is saturated with experience and well thought out – no “moralizing and attitudinizing,” as she herself once put it in defending Hegel, but rather an expression of political shrewdness.

The observation of Lübbe-Wolff’s father that work can be an “experience which imparts happiness-suffused evidence of meaning in one’s life,” is not only palpable but embodied in her presence. This latitude for thinking and being, which first makes such an experience possible, is something she also wanted to pass on to her children. In our conversation she says that it was always important to her that her children be free to develop on their own – she has perhaps little idea how pleasant this is to hear in a time of ubiquitous “helicopter parents.”

But Gertrude Lübbe-Wolff does not allow herself to be distracted from the facts of the case. It is also hard to imagine her having any patience with pompous “science management” or “career advisors” who recommend strategic thinking and the replacement of intrinsic motivation with calculation in whatever life-situation. “I’ve always done that which interested me,” she says – and she follows that path unflaggingly.