Death in the Tiergarten: Murder and Criminal Justice in the Kaiser's Berlin, by Benjamin Carter Hett. Cambridge, Massachusetts, Harvard University Press, 2004. ix, 291 pp. $35.00 US (cloth).

In this excellent study, Benjamin Canner Hett traces the history of German criminal law from the

late nineteenth through the early twentieth centuries. Taking as his starting point the American legal realist Roscoe Pound's dictum that there is a crucial difference between "'law in books and law in action'" (p. 6), Hett focuses his attention not, as is typical of German legal history, on the law as codified or on legal theory, but rather on law as practiced in the urban courtrooms of Berlin. Picking up on the ideas of the German "free law" movement of the early twentieth century, Hett seeks to free German legal history from what he argues is a doubly static view of law: the legal positivists assertion that codification "froze the evolution of legal doctrine" (p. 9) and legal historians' tendency to take jurists at their word in this respect. Shifting his scholarly attention to the micro-level of individual trials, primarily a number of prominent Berlin criminal cases, Hett argues that far from being static, German criminal law underwent significant shifts in the Wilhelmine period, even without any major legislative reforms. He traces three transformations in particular: first, an increasing mildness in criminal sentencing due to a rise in the willingness to consider psychological and social factors as mitigating criminality, accompanied by a concomitant rise in the role of expert witnesses, especially psychologists, in criminal trials; second, an increasing independence and assertiveness by defense counsel; and third, a growing sensitivity on the part of courts and the government to the influence of public opinion, especially as mediated by the rising mass press.

Beginning with an evocative pen portrait of Berlin and its court system, Hett refutes the conventional view of an authoritarian legal system in which judges and prosecutors operated at the behest of a state that used the legal system for its own political purposes. According to Hett, this view was a myth created by liberal and socialist critics of the Wilhelmine state, uncritically adopted by historians after the experience of the Nazi co-optation of the judiciary. Judges and prosecutors were too overworked for the courts to ever "operate as these authorities wished" (p. 47). Defense counsel, newly independent after the 1879 introduction of freie Advokatur or private legal practice freed from tight state regulation, sought increasingly to win clients by pursuing more aggressive tactics in the courtroom, often with surprising success. Indeed, Hett interprets what he calls the "literature of judicial error" as having rightly diagnosed the "danger facing the courts [not as] consistent political bias but rather randomness of outcomes--a product of human and procedural weakness, a product of irrationality" (p. 165). Moreover, given that, as Hett points out, "in the last age before the coming of a mass entertainment industry, law, like politics, often served as popular entertainment," (p. 104) it proved impossible to insulate the practice of criminal law from the pressures of popular opinion and the press. Sometimes, as in the notorious Heinze trial, where two flamboyant defense attorneys flouted convention by trying to extend the trial to the point where it became unworkable and even drank champagne in the courtroom, the government could try to mobilize popular sentiment to its own ends and seek to rein in the rights of defense counsel (with very limited success). At other times, however, the government and the courts found themselves influenced by popular opinion in new and unexpected ways, a point Hett drives home with admirable clarity in his analysis of the case of Wilhelm Voigt, the famous captain of Kopnick, who managed to commandeer a troop of soldiers using a bogus officer's uniform and rob the town of Kopnick of several thousand marks. In this case, Voigt was treated with considerable leniency, in part because both the courts and the government felt that he had been treated far too harshly in his pervious dealings with the criminal justice system and were worried by the negative publicity this generated.

One of the great virtues of Hett's account is the careful attention he pays to the contested nature of criminal law both inside the courtroom and outside, in the wider political and cultural context. Indeed, he argues that criminal law was the object of a culture war in the Wilhelmine period, with liberals and socialists arguing for a more nuanced, socially grounded and psychologically sophisticated understanding of the roots of criminality and conservatives lamenting what they perceived to be a gross decline in standards of public morality, symptomatic of a broader problem of social decline in the face of burgeoning urbanization and the rise of a mass society. In keeping with the recent trend to see Wilhelmine Germany as more dynamic and incipiently democratic than was traditionally thought, Hett argues that in this conflict it was the conservatives who were "losing the culture wars" (p. 191).

Although it could perhaps be argued that Hett is somewhat too inclined to "Americanize" the practice of German criminal law by downplaying the role of legal doctrine as strongly as he does, his portrait of the criminal justice system in Berlin is both lively and persuasive. This is a book that deserves to be read widely, not just by legal historians or scholars of Wilhelmine Germany, but by anyone interested in the way that law both impacts and is impacted by processes of social change.

Devin O. Pendas

Boston College