At The Library of Law and Liberty blog, Michael S. Greve has an intriguing post on "The German Connection". After the collapse of the Third Reich, there was a thorough rejuvenation of the rule of law (Rechtsstaatlichkeit) in Germany, the substantive notion of the rule of law being strongly committed to liberal (European meaning) principles. At a time when progressives continued in renewed waves to turn over the liberal conception of the rule of law in the US, German courts would stubbornly and successfully defend the newly regained liberal legal regime in Germany.
In the late 1960s, courts and then Congress institutionalized so-called “citizen suits” against government agencies. Unlike regulated parties, citizen plaintiffs don’t have at stake anything you’d recognize as a right; they represent broad, widely shared values. (Environmental groups are the prototype.) The idea was that agencies were routinely “captured” by regulated industries, so there had to be a counterweight—parties with legal entitlements to make executive branch agencies obey the purposes of Congress, as embodied in statutory law. To that end, statutory citizen-suit provisions typically authorize “any citizen” to sue the administrator for failure to perform a non-discretionary duty. So when the statute says that the Environmental Protection Agency “shall” regulate and the agency falls short, environmental groups have a cause of action. They’re equal participants in the agency rulemaking process and in court.
At that time, what was then West Germany was also discovering the issue of protecting the environment. People were apoplectic about pollution. Nuclear reactor sites had to be protected with paramilitary force. A Green Party was beginning to form. And, some lefty law profs trooped to Harvard, learned about citizen suits, and tried to import them into their own country. They penned learned articles about the “enforcement deficit” in environmental law, wrote model statutes, and proclaimed that even Amerika has citizen suits, the better to promote law and democratic participation. Why can’t we have that?
Because you can’t, the West German legal establishment responded. The key argument against citizen suits was not that they would disrupt orderly administration, or invite abuse, or overload the courts. It was: what you people are advocating is Nazi jurisprudence. We’ve thought and worked for decades to get rid of that garbage, and you’re not going to undo our accomplishments just because people get upset about—well, garbage. The citizen-suit trial balloon soon shared the Hindenburg’s fate. There’s no trace of the debate in administrative law to this day.
To be absolutely clear, I am not calling U.S. public interest groups and citizen-suit advocates Nazis. My point is that a legal instrument that well nigh everyone stateside accepted, often with great enthusiasm, went down in flames over there, as an intolerable assault on a liberal legal order. To rehearse the German professoriate’s key argument against citizen suits:
The point of law and especially administrative law (they said) is to protect rights against coercive state interference. To that end, we have independent courts that will perform de novo review on law and facts. If we want to keep that up, we must limit the courts to rights protection. They can’t review the legality of governmental conduct outside that context. A plaintiff who sues for that purpose is asking the court to command the performance of his private idea of how public authority ought to be exercised, and that’s not a right he has or courts can enforce. Likewise, it’s not the business of courts to make government and law more “democratic.” There are institutions, such as political parties and parliaments, to safeguard democracy and participation. Courts, in contrast, guard rights—if need be, guard them against democratic demands.
If you want to mobilize courts as engines of law-enforcement and democracy (the argument continues), they can’t be independent. If you want them to do the will of the people, go make them instruments of that will—and stop the pretenses about individuals’ rights.
Germany took that path once: in 1934, the Reichstag authorized a version of the allgemeine Buergerklage—the general citizen suit. It did so for obvious reasons. The inherited Weimar bureaucracy might not always enforce the new authorities’ race laws with the requisite speed or resolve. What was needed were actions by private informers or Citizens United for the Separation of Jews and State to enhance public participation and ensure obedience to law. That meant, however—and alongside the enormities recorded by history—the end of an independent judiciary. You cannot surrender the exercise of law to “democracy,” nor can you surrender the Staat to a “movement.” Not if you want to have a liberal Rechtsstaat and a judiciary that is institutionally disposed to protect rights.
Make sure to read the entire piece.