Litigious Paranoia: Sense of Justice, Bureaucracy, and Media

›Quarrelers‹, according to the president of the German Federal Administrative Court between 1958 and 1969, should not be judged with the same standards as a common citizen.

›Quarrelers‹, ›querulists‹, or ›querulous people at court‹, from Latin: queri, to complain.

In the last few years, investigations have been carried out on the relationship between emotions and justice in connection with the Anglo-American law-and-emotion debate,

See Eric A. Posner: »Law and the Emotions«, in: University of Chicago Law Occasional Paper 42 (2001), pp. 1–36; Brian Bornstein / Richard Wiener (ed.): Emotion and the Law. Psychological Perspectives, New York 2009; Terry A. Maroney: »Emotional Regulation and Judicial Behavior«, in: California Law Review 99 (2011), pp. 1485–1556.

that the goal of this paper was to find, using a media history of litigious paranoia, the legal and psychiatric power relationships and to identify the different recording methods which play a role in documenting the knowledge of querulous behavior as an excessive emotion.

Without the systematic consideration of these elements – which is the assertion of this paper – the emotions that play a role in querulous behavior cannot be recognized and described in all their complexity. However, the methodological decision behind this comes with consequences: The emphasis is not placed on the subjects who have been made outcasts, as the president of the Administrative Court and numerous psychiatric and legal investigations have done. Rather, it is the techniques, actions, and implementations that are investigated, which convert a behavior and its respective emotions into relationships on which commentaries are possible. It is not a matter of who, when, and where a person was labeled querulous – not an empirical list of names, dates, places, or offenses. The stakes in this media-historical approach consist of placing the emphasis on operations and cultural techniques, as they rely on symbols, persons, and material artifacts, interchange them, and are responsible for investigating and punishing someone as a querulous person. Of course, a media history of the excessive sense of justice deals with people who are labeled querulous – that goes without saying. However, one dare not fall into the trap of overlooking the cultural tools and media which are hidden behind litigious paranoia.

Before querulency was investigated as a form of insanity, it was a bureaucratic problem. Towards the end of the 18th century, the bureaucratic power of Prussia, effected by the General Court Code for the Prussian States of 6 July 1793 (AGO: Allgemeine Gerichtsordnung für die Preußischen Staaten), created the modern querulous figure by imposing controlled forms of legal writing on individuals. In this codified text on natural law, in which the rules for plaintiffs and legal justice in court cases were stipulated, the quarreler was created as a specific type of informed plaintiff in administrative legal cases: Those parties that do not submit to the prescribed order, but rather discommode either their colleagues and their superiors with apparently unfounded and unlawful complaints against better science and convictions; or after they have been shown to be in the wrong, nonetheless continue with their suits, and by means of repeated inappropriate petitioning, to attempt to force and assert something, in violation of law and order; or finally undertake to bother the Justice Department, or the person of His Majesty the King with false and inaccurate presentations of their demands, or with untrue and fictitious allegations and insults of their colleagues and the courts shall be seen as malicious or spiteful quarrelers (German, Querulanten), shall be tried, and their sentence shall be legally binding (§ 30 AGO, Part III, 1).

Knowledge about »malicious or spiteful quarrelers« (§ 30 AGO, Part III, 1) came from social control, bureaucratic surveillance, and legal discipline. A plaintiff who carried the threat of acting querulously, either at present or in the future, was understood to be a disturbance by the bureaucratic power. Quarrelers were, in the regulations and codes of the Prussian administration, conceived of as a disturbance in the complex bureaucratic procedures because they filed too many complaints. At a particular time and in precisely designated spaces, the quarreler was thus observed, examined, and closely watched by the Prussian administrative apparatus, both as a specific type of plaintiff and as a writer. Individuals who were investigated by the bureaucratic power brought attention to themselves by their repeated infractions. The plaintiffs caused the mountains of records to continue to grow and overtaxed the elementary forms of action for filing records in Prussia.

Birgitt Rehse: Die Supplikations- und Gnadenpraxis in Brandenburg-Preußen. Eine Untersuchung am Beispiel der Kurmark unter Friedrich Wilhelm II. (1786–1797), Berlin 2008.

The creation of quarrelers can be described as an effect of the media, or more specifically, we should call this an effect of the ›supplication‹ system of the 18th century. The ›supplication‹ system was the institutionalized means of appealing to governmental authorities in the form of requests, complaints, or lawsuits. In the 18th century, the term ›Supplik‹ referred to a petition or a letter of grievance complaining about an injustice suffered by the writer.

On the petitioning or ›supplication‹ system (›Supplikationspraxis‹) in Prussia in the 18th century, see Wolfgang Neugebauer: »Zur neueren Deutung der preußischen Verwaltung im 17. und 18. Jahrhundert in vergleichender Sicht«, in: Otto Büsch / Wolfgang Neugebauer (ed.): Moderne Preußische Geschichte 1648–1947. Eine Anthologie, Vol. 2, Berlin 1981, pp. 541–597.

In this context, the case of the miller Mr. Arnold is clearly the best known in German legal history, and the texts written by millers were the best known querulous medium around 1800. During the court case and the ›Supplikation‹ procedure, the authorities found the miller and his wife guilty of a dangerous distortion and excessive sense of justice. The couple was arrested and imprisoned as quarrelers because of their repeated appeals to Friedrich II.

See Karl Dickel: Beiträge zum preußischen Rechte für Studierende und Referendare, Marburg an der Lahn 1891; Eberhard Schmidt: »Kammergericht und Rechtsstaat. Eine Erinnerungsschrift«, in: Moderne Preußische Geschichte 1648–1947, Vol. 2, pp. 622–648; David Martin Luebke: »Frederick the Great and the Celebrated Case of the Millers Arnold (1770–1779). A Reappraisal«, in: Central European History 32 (1999), pp. 379–408.

The pleas and rituals of such texts were not subject to any antagonistic order; they were not as contradictory or collisional as has been assumed at times.

Michel Foucault: »Lives of Infamous Men«, in: Foucault: Power, pp. 157–175 and Arlette Farge / Michel Foucault: Disorderly Families. Infamous Letters from the Bastille Archives, Minneapolis, Minnesota 2016, pp. 251–266.

The emphatic language that appeals insistently and energetically to the sovereign refers not only to the complaint about the inflicted suffering but also to the protective function of the sovereign as defined in the social contract. Such sentences and legal demands could be drafted, because someone was aware on the one hand of the rights to his or her rights. On the other hand, the ›Supplik‹ was the medium onto which socially contractual ideas were projected, which determined free access for citizens to the administration of justice and to the sovereign as the last (and highest) authority. At the same time, this example makes clear that within the Prussian system of power the system of supplication was not solely established so that the subjects could obtain their rights. It was also established as a declaration of self which called upon the citizens to study their emotions and to write down an account of what they felt to be an injustice. Such ›Suppliken‹ were a part of that bureaucratic fabric of writing that pervaded the behavior and expression of the people in Prussia to register their lives and make them communicable.

The bureaucratic discussions about quarrelers were coupled with a massive increase in and further development of the administrative departments in Prussia.

See Sandro-Angelo Fusco et al.: »Verwaltung, Amt, Beamter«, in: Otto Brunner / Werner Conze / Reinhart Koselleck (ed.): Geschichtliche Grundbegriffe. Historisches Lexikon der politisch-sozialen Sprache in Deutschland, Vol. 7, Stuttgart 1992, pp. 1–96 and Michael Stolleis: Geschichte des öffentlichen Rechts in Deutschland. Vol. 1: Reichspublizistik und Policeywissenschaft 1600–1800, München 1988, pp. 366–369.

Friedrich Kittler showed in his study »Aufschreibesysteme 1800/1900« (Discourse Networks 1800/1900) that, during the process of the reformation of the Prussian school system, specific subjects to authority were created.

Friedrich Kittler: Discourse Networks, 1800/1900, translated by Michael Metteer with Chris Cullens, Stanford 1990, pp. 53–69.

What is formulated here against the background of the pedagogical, bureaucratic, and also literary discourse of the Goethe era is a media and cultural history of the creation of subjects, and thus not a history of the invention of technical equipment, instruments, or processes. Rather it is the story about how people were turned into subjects. The notorious reference for Kittler’s theoretical framework for the ›creation‹ of subjects is Michel Foucault’s »The Order of Things« and his well-known appeal for waking up out of an »anthropological sleep«.

Michel Foucault: The Order of Things. An Archaeology of the Human Sciences, London 2002, pp. 371–373.

This step in the detection process also results from an analysis of the regulation that schools were interpreted as one of the institutions of the state (§ 1 ALR 1794, II. Theil, 12 [§ 1, 2nd part, 12 of the General State Laws for the Prussian States of 1794]) and as such the principle of self-government was installed in them. Accordingly, following Friedrich Kittler’s line of thinking, the media and legal scholar Cornelia Vismann, for one, when she wanted to show in »Files: Law and Media Technology« which media power structures created citizens out of subjects around 1800, argued that subjects were created because they were given the possibility of administering themselves; in the record-keeping Prussian nation, each citizen was his own civil servant and the strict delineation between official and private records disappeared.

Cornelia Vismann: Files. Law and Media Technology, translated by Geoffrey Winthrop-Young, Stanford 2008, pp. 109–117.

First of all, we can say that the epochal threshold around 1800 was described as a time of pedagogical and bureaucratic legal reforms. Media and cultural techniques – beginning with reading and writing exercises using glasses and quill pens, then the introduction of school textbooks, followed by filing systems – can be seen as essential for establishing a constitution of the subject. The citizens were brought up to become officials, bureaucratic media massively influenced the everyday life of individuals, and this led to a convergence of administrative processes and literature. This cursory media-historical identification of the bureaucracy and its media is crucial because following this we can recognize that besides the transformation of citizens into civil service officials a parallel history can be developed. The history of the creation of the quarreler is a parallel history to the creation of the Prussian civil servant. The excessive petitioners were such a big administrative problem at that time, because they were a creation of the bureaucracy and a shadow of it. The quarreler was nothing more than a disturbance immanent to the system which was an effect of the media techniques of the bureaucracy.

Here, it can be seen that the ›Suppliken‹ that could be considered querulous writing were documents of the self-perception of people, produced either voluntarily or wrested from them: documents that provided information about familial, political, social, and cultural circumstances in individual systems, at certain times, and in certain locations. The ›Supplik‹ as a writing technology formed a link between the private and administrative sectors and made people and their emotions more transparent than they had been before the intensive expansion of the supplication system. The things that the petitioners wrote in their letters demonstrated, on the one hand, their everyday fear of deteriorating social status, of a loss of property, and of a social and moral decline. On the other hand, these ›Suppliken‹ assured them of the certainty that they could demand and receive justice. The ›Suppliken‹ of that time document a reflection on emotions and were intended to satisfy ideas of justice.

Not only was querulous behavior classified as an administrative disturbance by criminal courts, surveillance, educational, and investigative institutions were also established to keep it in check. A major portion of the judicial assistance was provided by psychiatry;

Historically, efforts mostly focused on criticism of psychiatry and the so-called ›Irrenbroschüren‹. Cf. Cornelia Brink: Die Grenzen der Anstalt. Psychiatrie und Gesellschaft in Deutschland 1860–1980, Göttingen 2010, pp. 165–192; Rebecca Schwoch: »›Mein jahrelanger Kampf gegen den Psychiater Größenwahn‹. ›Irrenbroschüren‹ als Form einer Psychiatriekritik um 1900«, in: Christine Wolters et al. (ed.): Abweichung und Normalität. Psychiatrie in Deutschland vom Kaiserreich bis zur Deutschen Einheit, Bielefeld 2013, pp. 71–95 and Rebecca Schwoch / Heinz-Peter Schmiedebach: »›Querulantenwahnsinn‹, Psychiatriekritik und Öffentlichkeit um 1900«, in: Medizinhistorisches Journal 42 (2007), pp. 30–60.

The physicians and lawyers did not accept, as has sometimes been assumed,

Karl Peters: »Reaktion und Wechselspiel. Zur Problematik des Begriffs ›Querulant‹ aus strafprozessualer Sicht«, in: Manfred Just (ed.): Recht und Rechtsbesinnung. Gedächtnisschrift für Günther Küchenhof (1907–1983), Berlin 1987, pp. 457–469; and Gerhard Möllhoff: »›Querulanten‹. Anmerkungen zu einem unerschöpflichen Thema in der forensischen Psychiatrie«, in: Hans Binder (ed.): Macht und Ohnmacht des Aberglaubens, Pähl 1992, pp. 182–199.

If one gains an overview of the state of the research, it will soon become clear that the knowledge about the sense of justice was a profoundly uncertain knowledge and the concept was a declaration of war for some: There were and there are still today significant differences in the definitions of the sense of justice in legal sociology,

Thomas Raiser: Grundlagen der Rechtssoziologie, Tübingen ⁴2007, pp. 319–322.

From a media-historical perspective, it can, however, be asserted that the discussions on the sense of justice at the end of the 18th century followed a psychologized and moralized definition of this concept – assuming an individually characterized emotion and inner feelings.

On this aspect from a cultural studies perspective, see Hartmut Böhme: »Gefühl«, in: Christoph Wulf (ed.): Vom Menschen. Handbuch Historische Anthropologie, Basel 1997, pp. 525–548.

No later than the 1850s, those persons who were considered to have an exaggerated sense of justice were not just physically punished by the legal-bureaucratic power. Increasingly, psychiatric disciplining was employed for the deviant petitioners. The forensic specialist Johann Ludwig Casper in his »A handbook of the practice of forensic medicine, based upon personal experience« (London: 1861) (Practisches Handbuch der gerichtlichen Medizin [1858]) was perhaps the first to report about a frequently occurring illness which resulted from a supposed infringement of the awareness of justice among individual plaintiffs whose sense of justice could grow into an insane legal dogmatism.

Johann Ludwig Casper: Practisches Handbuch der Gerichtlichen Medizin nach eigenen Erfahrungen bearbeitet, Vol. 1, Berlin ³1860, p. 501.

The question as to what caused litigious paranoia was answered differently by the psychiatrists. It was not just the medical files and court records which snowballed; the designations for the illness and its causes also increased drastically. They were first listed in files and later published in studies: monomania,

Casper: Practisches Handbuch, p. 574; Carl Wernicke: »Über fixe Ideen«, in: Deutsche Medizinische Wochenschrift 18 (1892), pp. 581–582.

A certain fascination emerges from these psychiatric studies, which to a large part resulted from the confusion about the scientific terminology. About 200 publications, ranging from extensive monographs, papers in medical journals, or medical dissertations, tried – primarily between 1880 and 1930 – to clarify what litigious paranoia was. A significant distinguishing feature of litigious paranoia for psychiatrists was a sense of justice which deviated from the ›norm‹. Accordingly, the highly influential psychiatrist Emil Kraepelin attributed litigious paranoia in the late 19th century to a hypersensitive sense of justice,

Emil Kraepelin: Psychiatrie. Ein Lehrbuch für Studierende und Ärzte, Vol. 2, Leipzig ⁶1899, p. 447.

The concept quarreler (›Querulant‹) was taken from legal-bureaucratic terminology and introduced as a term for an illness in the middle of the 19th century. With this, the forensic medical diagnosis pathologized not only the individual plaintiff but also the legal process-oriented nature of the claim; in other words, it pathologized the possibility of taking legal action. Therefore, the individual had become subject to the psychiatric diagnosis querulency, and that, against the backdrop that the constantly expanding psychiatry, was advising society to protect itself against possible litigious paranoia. The disease affected everyday people, above all, those who were socially dependent. For psychiatrists, litigious paranoia was primarily a disease of the subordinate class. Correspondingly, people in subordinate professions were registered in the files of the asylums when the psychiatrists were trying to diagnose the disease. The psychiatric power, however, also claimed to be able to diagnose litigious paranoia among those who were self-employed, in superordinate positions, wealthy, and powerful – albeit to a considerably lesser extent and with moderate success: district attorneys and mayors, landowners and representatives in the Reichstag, and district medical officers and project managers. For example, the president of the senate of the Higher Regional Court in Dresden, Daniel Paul Schreber – probably the most famous paranoiac in German media history – appears in the list of the querulent insane, at least as described by Sigmund Freud.

Sigmund Freud – Karl Abraham: Briefe 1907–1926. ed. by Hilda C. Abraham and Ernst L. Freud, Frankfurt am Main ²1980, p. 272.

With these investigations of the excessive sense of justice, psychiatry entered not only the realm of jurisprudence but also areas and times of the general public. It was an institution that aided the legal system and additionally, as forensic medicine, began to provide considerable support for a comprehensive social project beginning in the early 19th century.

Michel Foucault: »About the Concept of the ›Dangerous Individual‹ in Nineteenth-Century Legal Psychiatry«, in: Foucault: Power, pp. 176–200.

A large number of case histories about litigious paranoia around 1900 could be cited here. Psychiatrists meticulously collected everything that was classified as querulent insanity using the symptoms they established. From among these countless cases, one stands out in particular because problem areas in psychiatry are dealt with against a backdrop of media practices and a sense of justice.

In his discourse on the insane »Die Schrift bei Geisteskrankheiten. Ein Atlas mit 81 Handschriften« (The Handwriting of the Insane: An Atlas with the Handwriting of 81 Authors) [1903], which was put together out of material from the clinic in Gießen, the royal senior physician at the psychiatric clinic Rudolf Köster reproduced the writing of a 30-year-old office clerk. Köster included the handwritten samples in his collection, as they were considered characteristic for the writing of the paranoid quarrelers.

Rudolf Köster: Die Schrift bei Geisteskrankheiten. Ein Atlas mit 81 Handschriften, Leipzig 1903, p. 161.

More can be found in this diagnosis than one might originally expect. It is an example for how psychiatric observation tried to find pathological symptoms in normal situations and, using epistemic paths, diagnosed litigious paranoia. Paranoid litigious paranoia was a chronic mental illness for psychiatrists, during the course of which logic and memory remained for the longest time. For that reason, psychiatrists did not expect especially striking faults in writing as indicators of the disease. Paranoid litigious paranoia was not a form of insanity that physicians expected to recognize from shaky, awkward, hardly legible handwriting – as was the case for progressive paralysis, epilepsy, or catatonic schizophrenia; it was rather a state that became noticeable from small distortions. This finding can be explained by the assumption that psychiatrists who investigated litigious paranoia were confronted with non-hallucinating deliria in which the psychic disposition of the patient remained without loss of intellect. The psychiatric knowledge about litigious paranoia consisted of the assumption that insanity was assumed, but that the patient appeared to behave reasonably: He thought logically, had a surprising verbal eloquence, and had comprehensive knowledge of laws – observations which covered up the actual insanity.

For more on querulous insanity as a form of insanity devoid of affective or hallucinatory symptoms, see Cornelius Borck / Sonja Mählmann: »Der Querulantenwahn – oder wie die Psychiatrie zu ihrem Recht kam«, in: Heinz-Peter Schmiedebach (ed.): Entgrenzungen des Wahnsinns. Psychopathie und Psychopathologisierung um 1900, München 2016, pp. 241–258, at p. 247.

This account of the text as an indicator and symptom, which at times grew into a fetishized glorification of the tiniest stroke of a pen among the graphological handwriting researchers, was connected with a modern ideology both of the subject and of the research of insanity. The deciphering and comprehension of human beings by means of handwriting analyses was based on a pseudoscientific creation of analogies and on simple recognition processes, with which a repressive system was established. To generate such an investigation of knowledge about querulency using a text, the text had to be overdetermined, the distance had to be dissolved between the temporality of the writing and the materiality of the text, and a relationship between the handwriting and the author had to be propagated which was based on a congruency of the two.

Stephan Kammer: »Reflexionen der Hand. Zur Poetologie der Diferenz zwischen Schreiben und Schrift«, in: Davide Giuriato / Stephan Kammer (ed.): Bilder der Handschrift. Die graphische Dimension der Literatur, Frankfurt am Main 2006, pp. 131–161, at p. 138.

Characteristic for the psychiatric observation investigated so far was that the analyses of the writing were followed by a neurological examination, namely in the sense that the written symbols were interpreted less as a result of a mechanical effect than as a reaction. This focus on the scheme annoying stimulus/response was basic for the diagnosis of the disease pattern. After all, the act of writing – instigated by the stimulus and an abnormal sense of justice – was at the center of the diagnosis. When psychiatrists had their querulous patients write and reproduced the written documents in their textbooks, they attempted to create a system for determining relevant parameters. The reactions – according to the psychiatrists – revealed the dysfunctions. The behavioral analysis was based on the assumption that the writing was the reaction to stimuli. Handwriting was not a superb medium for demonstrating the existence of insanity; however, it was understood to be an opportune resource for diagnosing it. It served in individual cases to help determine accountability or lack of accountability in connection with the deed, when a physician had to be called upon to provide the court with an expertise.

Ever since the legal-bureaucratic figure of the querulous person has been investigated in forensic medicine, the research into the knowledge about querulency has focused on the written products and the writing process. Psychiatry has been assigned the task or has assigned the task to itself of determining whether individuals who have written offensive letters to the legal bureaucracy should be permitted to continue to write in freedom or should be sanctioned. The physicians needed graphological interpretations, because they were faced with a time problem. The psychiatric investigation of semantics, gestures, and writing tools served to help reconstruct the mental state during the process of writing a complaint.

Rupert Gaderer: »Querulatorisches Schreiben. Paranoia, Aktenberge und mimetischer Parasitismus um 1900«, in: ZMK. Zeitschrift für Medien- und Kulturforschung 4 (2013), pp. 37–51.

Just as the quarrelers did not stop complaining, their antagonists did not quit, either. In the history of reciprocal accusations as outlined above, the fields of confrontation and the sources of conflict have not dwindled to this day. Psychiatry and bureaucracy still are interested in querulency. The lines of observation of psychiatric and bureaucratic investigation naturally have changed; however, there are certain elements, such as the abnormal sense of justice and handwriting, the investigation of which has set the order for the discourse on querulency since the first administrative investigations. Today psychiatrists call plaintiffs who fight for their rights in such a manner ›Rechtsparanoiker‹ (legal paranoiacs).

Horst Dilling / Christian Reimer: Psychiatrie und Psychotherapie, Berlin ³1997, p. 65; Volker Arolt / Horst Dilling / Christian Reimer: Basiswissen Psychiatrie und Psychotherapie, Berlin ⁷2011, p. 43.

For the diagnosis process, writing remained a central indicator for psychiatry around 2000. »Numerous written expressions«

Henning Saß: »Persönlichkeit, Strukturverformung und Wahn am Beispiel der Querulanz«, in: Frank Schneider (ed.): Positionen der Psychiatrie, Berlin 2012, pp. 280–288, at p. 285.

The legal quarrelers carried out their complaints for a considerably longer time and produced more writing (both more texts and more written volume). They frequently chose unusual formatting, used a large number of footnotes and glosses, applied different methods to emphasize content (marking text in different colors, underlining, capitalization), and stressed expressions considered important with quotation marks or repeated punctuation (›???‹ or ›!!!‹).

Detlef E. Dietrich / Bastian Claassen: »Querulantenwahn«, in: Petra Garlipp / Horst Haltenhof (ed.): Seltene Wahnstörungen, Heidelberg 2010, pp. 132–140, at p. 134. Dietrich and Claasen refer to the studies of Grant Lester et al.: »Unusually persistent complainants«, in: British Journal of Psychiatry 184 (2004), pp. 352–356 and Paul E. Mullen / Grant Lester: »Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour«, in: Behavioral Sciences & the Law 24 (2006), pp. 333–349.

This psychiatric attention and the exploitation of writing are a reason why a literary figure who was established by his own writing has become one of the most stable points of reference in the history of querulency in modern psychiatry: The uncontested star among the quarrelers and troublemakers is Michael Kohlhaas from Heinrich von Kleist’s novella of the same name. Psychiatrists who deal with the nosology of litigious paranoia have been remarkably intensively attracted to the novella. By reading psychiatric and legal literature, one can recognize that this story has had and still has a special significance in setting up psychiatric and legal knowledge. From the end of the 19th century up until today, Michael Kohlhaas has been an integral part of the psychiatric-forensic discussion about querulency. The subordinate horse dealer Kohlhaas, whom Kleist initially described as a supplicant, is described in modern psychiatric literature as a ›legal paranoiac‹.

Dilling / Reimer: Psychiatrie und Psychotherapie, p. 65; Arolt / Dilling / Reimer: Basiswissen Psychiatrie und Psychotherapie, p. 43.

The story serves as an example in psychiatric as well as legal studies, which show the extent to which laws and the collision with bureaucratic forms can lead to insanity and that latent dangers can erupt violently. Michael Kohlhaas is not just an imaginary horse trader who together with his fellow troublemakers burns down towns in Saxony and Brandenburg but also a literary figure who above all does one thing – he writes. Numerous written documents are submitted, received, and stored in increasingly larger files – including appeals, ›Suppliken‹, petitions, and protest letters. In the activities that are caught up in the process of submitting and receiving official documents, Kleist described an institutional power reflex of the Prussian bureaucracy around 1800, which wished to stop and suppress the obstinate demands of the horse trader, as the administrative machinery recognized that it would be overwhelmed by Kohlhaas’s subsequent media responses, thus limiting its scope of possible actions. Here, Michael Kohlhaas is understood by the judiciary officials to be a figure caught up in excessive appeals. Since the files keep getting larger, he is discredited as a »quarrelsome fellow«.

Heinrich von Kleist: Michael Kohlhaas. Translated by Martin Greenberg, New York 1960, p. 18.

This is also a reason why the novella »Michael Kohlhaas« has been at the center of legal-bureaucratic deliberations on legal access, control over writing, and the sense of justice. This applies for both legal philosophical and legal theoretical discussions in the past as well as for contemporary controversies that concern the Supreme Court of the Federal Republic of Germany. The novella is at least for Horst Sendler, the president of the German Federal Administrative Court between 1980 and 1991, the starting point for his thoughts on the so-called ›Kohlhaas-Typ‹ (Kohlhaas figure). A ›Kohlhaas figure‹ is a petitioner in whom an obsession (fixe Idee) can be observed.

Horst Sendler: Michael Kohlhaas, gestern und heute, Berlin 1985, p. 25.

The present president of the German Supreme Constitutional Court, Andreas Voßkuhle, has also posed the question as to which challenges this type of petitioner represents for the democratically constituted community.

Andreas Voßkuhle / Johannes Gerberding: »Michael Kohlhaas und der Kampf ums Recht«, in: Juristen Zeitung 67 (2012), pp. 917–925, at p. 917.

The provisions and arrangements for storing, transferring, and deleting appeals, according to the persistent discourse among those responsible at the Constitutional Court, are used so excessively by some petitioners that the administration of the appeals is overloaded. Here, the processing of large volumes of data at the Constitutional Court is pointed out. One must consider that the petitioners appealing to the German Supreme Constitutional Court have already gone through numerous levels of appeal at lower courts, which in many cases have rejected their demands, and that the Constitutional Court is their last resort to receive justice. Someone who sends an appeal to Karlsruhe (or delivers it personally at the entrance) has usually already gone through an initial appeal (Berufung), a revision (Revision), an immediate complaint bound to a time period (sofortige Beschwerde), a legal complaint (Rechtsbeschwerde), and a complaint against the denial to appeal (Nichtzulassungsbeschwerde) – and has still not given up hope of receiving his or her rights. The German Supreme Constitutional Court in Karlsruhe is the last resort for appeals within the German court system – petitioners have to pass through all the other appellate possibilities before filing an appeal there. Processing the petitions submitted by the plaintiffs is not always possible – according to those responsible – because the court is overloaded with excessive claims, some produced by parasitic ›Kohlhaas figures‹. Depending on the severity of the criteria used, the proportion of querulous claims filed with Germany’s Supreme Court ranges from one-tenth to one-third of the filings.

Erhard Blankenburg: »Die Verfassungsbeschwerde – Nebenbühne der Politik und Klagemauer von Bürgern«, in: Kritische Justiz. Vierteljahresschrift für Recht und Politik 31 (1998), pp. 203–218, at pp. 209–210; Erhard Blankenburg: »Unsinn und Sinn des Annahmeverfahrens bei Verfassungsbeschwerden«, in: Zeitschrift für Rechtssoziologie 19 (1998), pp. 37–60, at p. 38.

The complaint that querulous entries reduce the working capacity of the courts is as old as the querulous figures themselves and the development of the sense of justice in the 18th century. In addition, the subject gains importance with the question of appeals to the Constitutional Court. In the discussions on the sense and future of appeals to the Constitutional Court the argument was introduced at the outset that as an exaggeration in the legal system they encouraged the querulous petitioners and unduly extended legal disputes.

Rüdiger Zuck: Das Recht der Verfassungsbeschwerde, München ⁴2013, Rn 154.

The emotional moment in appealing to the Constitutional Court is based on the fact that the petitioner has to make clear that his rights and obligations were infringed upon, as they have been laid out in the Constitution, or that his rights and obligations are in immediate danger. Any man or woman can file an appeal with the German Constitutional Court (§ 90 Abs. 1, BVerfGG) if they feel that the public authority has violated their fundamental rights (Art. 1 – 19 GG) or rights that are equivalent to their fundamental rights (Art. 20 Abs. 4, Art. 33, 38, 101, 103, 104 GG) and the petitioner is ›grundrechtsfähig‹ (legally accountable) and ›grundrechtsmündig‹ (legally of age).

Klaus Schlaich / Stefan Korioth: Das Bundesverfassungsgericht, München ⁷2007, pp. 114–117.

The medial peculiarity of appeals to the Constitutional Court results from the fact that they have to be submitted in writing (§ 23 Abs. 1, § 92 BVerfGG) and that there is a set address for such appeals. They have to be sent via the postal service (address: Bundesverfassungsgericht, Postfach 1771, 76006 Karlsruhe) or by fax (fax no.: +49 (721) 9101-382). Writing an appeal to the Constitutional Court is not particularly difficult: It can be handwritten, written with a typewriter, or printed using a computer, as there are no official forms or questionnaires. However, the petitioners must name the jurisdictional measures involved that resulted in an infringement of the petitioners’ constitutional rights, the petitioners themselves must have been affected, and they must have already exhausted all other legal means. An appeal to the Constitutional Court cannot be submitted as an email for fear that the use of digital media might multiply the noise in the information channels. As a result of a review of the paper records of the German Constitutional Court, the so-called ›Q‹ index was created.

Blankenburg: »Unsinn und Sinn des Annahmeverfahrens bei Verfassungsbeschwerden«, p. 46.

Remarkably, within the history of querulency, the parameters in the systems used for recognizing this behavior have remained relatively stable over the last 200 years. That applies, on the one hand, to identifying querulency via the medial operations sending and receiving, the cultural technique of writing, and the determination of a psychic abnormality or the diagnosis of an abnormal sense of justice. On the other hand, there is still the name-giving abuse at the center of the process for determining querulency. At the moment, this is most intensely recognizable in the legal political discussion about ›abuse fees‹ and the introduction of a ›willfulness fee‹ at the Constitutional Court. The ›abuse fee‹ (›Missbrauchsgebühr‹ § 34 Abs. 2 BVerfGG) makes it possible, despite the stipulation that no fees should accrue, to charge the petitioner a fee for abuse of up to 2,600 euros. In this way, petitioners to the Constitutional Court who correspond to the ›Kohlhaas figure‹ are to be discouraged from submitting querulous claims to the court. The problem, however, is that the regulations do not include a clear definition of ›abuse‹.

In the administration of justice in the chambers ›groups of cases‹ have arisen in which abuse has attracted attention: completely hopeless claims, that is, »obviously inadmissible and unfounded constitutional appeals« (primarily from lawyers), »repeated submission of futile constitutional appeals for cases with parallel presentations«, »continuation of a constitutional appeal after inadmissibility has been entered in the General Register«, »petty cases«, »false statements and deception about case facts«, »instrumentalization of constitutional appeals«, »appeals and complaints with a libelous or defamatory character«. See Christian Burkiczak / Franz-Wilhelm Dollinger / Frank Schorkopf (ed.): Bundesverfassungsgerichtsgesetz (Heidelberger Kommentar), Heidelberg 2015, pp. 672–677, at p. 673. On the ›abuse fee‹ see Monika Winkler: Die Missbrauchsgebühr im Prozessrecht. Ein Beitrag zu Missbrauchsgebühren nach § 34 Abs. 2 BVerfGG und nach § 192 Abs. 1 Nr. 2 SGG im Kontext prozessualer Kostensanktionen, Tübingen 2011.

If one summarizes the problem areas described above, it can be noted that querulency is defined as a breaking point at the German Supreme Constitutional Court even today. The petitioners who are considered to be a disturbance as a result of their sense of justice are effectively and extensively excluded from the system of jurisprudence in which they are included. This moment of exclusion and inclusion makes clear who, when, how, and where decisions thought to be reasonable go beyond acceptable measures. By means of such a configuration of querulency – as a moral, economic, and judicial injury – it has been possible to maintain this legal-bureaucratic figure up to the present day. Someone who is identified as having the ›Michael Kohlhaas syndrome‹ is not entitled to file an appeal with the German Constitutional Court.

The novella ›Michael Kohlhaas‹ is cited in legal discourse to consider the significance of the fight for rights and the fight for justice in today’s society. A novella is used by judicial decision-makers as a test case for contractual forms for the justification of jurisdiction. Michael Kohlhaas does not rebel against the state, but rather revolts against the absence of legal security in the state involved. What drives the modern Kohlhaas is his sense of justice, according to the president of the Constitutional Court, who claimed that where the sense of justice is not in agreement with positive rights people such as Kohlhaas take action. In his opinion, the modern legal order is extremely susceptible to an injured sense of justice and provides a multitude of possibilities for appeal, and the perception of injustice can be reported by anyone to create a court case out of it. Voßkuhle said the problem with Kohlhaas is that there is no difference for such petitioners between individual perceptions of justice and general laws

Voßkuhle / Gerberding: »Michael Kohlhaas und der Kampf ums Recht«, p. 924.

In addition, courts such as the German Constitutional Court are confronted with numerous petitioners who claim to be better informed about the law than the judges. This has been recorded in countless letters to the Constitutional Court, which deal with the petitioner’s sense of justice. The reason this can be observed can be found in the fact that since the early 18th century the laws have supported the petitioning process and evoked appeals. ›Michael Kohlhaas‹ has great significance for the present legal situation and dealing with the sense of justice because the novella shows the extent to which querulency represents a dark side of bureaucratic situations. The administration of justice in a democracy depends on institutions and processes as well as media, which provide for the transfer, storage, and deletion of information to mobilize justice. When the conditions for achieving justice, the overloaded courts, and the emotions of querulous persons are being discussed, those media of bureaucracy come into focus without which the appeals would not be possible.

Following this cursory history of querulency, from its beginnings in the Prussian bureaucracy around 1800 up to current psychiatric and legal-bureaucratic discussions, three relevant aspects of a media-scientific examination of querulency can be identified. First, we can say that querulency is a media phenomenon in communication which historically has been based on each of the different forms of media and at the same time responded to them. Here, those media and infrastructures have been involved that have been instigated since the 18th century so that our knowledge about human beings and their sense of justice can be recorded and passed on. At the same time, text diagnostic processes are intended that have been used in bureaucracy and psychiatry to diagnose a case of litigious paranoia. Second, we can say that an observation of the troubling practices and troubling media mentioned here make an investigation of the exclusion procedures and the rituals developed for ascertaining truth possible. This appears to be crucial because it is these procedures and rituals in particular that define speech as querulous speech, a text as a querulous text, and a sense as a querulous sense. A media-historical investigation of querulency as briefly outlined here must examine intentionally set up legal and social structures that can be deliberately broken by overloading them. Still today, one such breaking point is the psychiatric diagnosis litigious paranoia, which has been and still is dependent on individual views on how, when, and where a sense of justice is attested to be normal or abnormal. Third and finally, we can say that querulency involves minor professional polemic activities. Querulency, namely, is a specific critical stance, and furthermore, it has been observed to be an unusual hypercritical activity since the 18th century. Anyone who criticizes takes a specific stance – using specific forms of speech, taking specific forms of action, understanding situations in specific ways, and feels in specific ways. Therefore, the individuals put themselves in a specific perspective: They establish a relationship to certain knowledge, to attitudes in society, to institutions and media, to those people closest to them and those most distant. The accounts about people who have been observed as being quarrelers and troublemakers in the past and still are today indicate when a society itself maintains that the sense of justice has become excessive.

Translated by Bruce W. Irwin