"Non-Germans" Under the Third Reich (139 page)

123.
Cf. the decision of the Reich Disciplinary Court of June 15, 1937 (
Zeitschrift für Beamtenrecht
1937–38, 105), which found a civil servant—who for years had been at the forefront of the struggle for the
völkisch
idea—guilty of breach of duty because he had refused to give a donation to the Winter Relief Appeal, claiming that he had regularly given a considerable proportion of his income to private charities. The official had emphasized that his refusal to donate could not have any legal consequences in view of the constant official assurances that such donations were “voluntary.” The Disciplinary Court countered: “The accused still holds onto a notion of … freedom in its crassest liberalistic form … for him freedom means the discretion to shirk any duties not expressly written down in the law. He has declined to contribute to a common cause because he wants to show that no one can compel him—a free man—to do something against his will.” He had to recognize that he had “acted in abominable fashion, abusing the freedom granted him by the Führer as an expression of his trust in the German soul.” W. Weimar, “Kann durch Polizeiverfügungen dem einzelnen Volksgenossen eine Pflicht zur Beflaggung auferlegt werden?”
RVerwBl.
(1937): 479 ff., asks whether hoisting the swastika flag at celebrations could be enforced by the police and comes to the conclusion that raising the flag, though not a legal obligation, was a manifestation of loyalty to the Führer. Not raising the flag could be a sign of shortcomings in Nazi training. He proposes a stay in a concentration camp to make up for this lacuna in the offender’s education.

124.
Lammers, “Staatsführung im Dritten Reich,” 9 ff., 13: “In conscious and diametrical opposition to liberalism, National Socialism takes as its starting point a firm belief in the inequality of man … because nothing can be perfect, National Socialism prefers a—perhaps—just inequality over the unjust inequality of unrealistic Liberalism…. The
Volk
is primary … not the individual…. For the
Volk
life only makes sense when it has an eternal foundation in … the community of the
Volk
.”

125.
“It is not a question of doing away with the inequality of man but on the contrary of deepening it and—as in all great cultures—of making it law through insurmountable barriers. There are no equal rights for all…. I will, therefore, never accord other peoples the same rights as those I grant the Germans. Our mission is to subjugate other peoples. The vocation of the German nation is to provide the world with a new ruling elite” (Rauschning,
Gespräche mit Hitler
, 44).

126.
Gütt, Linden, and Maßfeller,
Blutschutz und Ehegesundheitsgesetz
(1936), 226.

127.
Lösener, “Die Hauptprobleme der Nürnberger Grundgesetze” (1935), 929 (931) (also BA R 58/243).

128.
Cf. A. de Toqueville to Gobineau: “The theory of the perpetual inequality of races begets arrogance, tyrrany and depravity” (Schemann,
Briefwechsel Toqueville an Gobineau
1843–1859 [1908], 187).

129.
Rousseau, “De l’inégalité parmi les hommes,” in Rousseau,
Du contrat social
(1962), 90; similarly, Bracher,
Zeitgeschichtliche Kontroversen
, 99 f.; regarding the efficiency of National Socialist despotism, see also Kirchheimer, “Die Rechtsordnung des Nationalsozialismus,” 356 ff. (358 ff.).

130.
Forsthoff,
Der totale Staat
, 41.

131.
Wolf, “Das Rechtsideal des nationalsozialistischen Staates,” 352; he continues: “For our sense of justice would be more profoundly offended by insisting on the fiction of equality—whose falseness is commonly accepted—than any act of open and therefore resistible despotism”; cf. also Lösener, “Die Hauptprobleme der Nürnberger Grundgesetze,” 929 (931).

132.
Cf. Hegel,
Grundlinien der Philosophie des Rechts
, 270.

133.
Reich Supreme Court of June 27, 1936,
Az. I
297/35,
JW
(1936): 2529 ff., 2530. In this respect see also Lösener, “Die Hauptprobleme der Nürnberger Grundgesetze,” 929 (931).

134.
Mayer,
Deutsches Verwaltungsrecht
(1924), 9 f.

135.
For further details, see Fraenkel,
Der Doppelstaat
, 96 ff., with numerous examples.

136.
Ibid., 231 ff., 235.

137.
Schmitt,
Staat, Bewegung, Volk
, 5 f.; Forsthoff,
Der totale Staat
, 38.

138.
Forsthoff,
Der totale Staat
, 40.

139.
Koellreuter,
Verfassungsrecht
(1938), 91 f.

140.
Koellreuter,
Volk und Staat:
In the Führer state, the political elite is drawn from the “Movement” (16 f.).

141.
Ipsen,
Das Problem der justizlosen Hoheitsakte
(1937), foreword.

142.
Walz,
Artgleichheit gegen Gleichartigkeit
, 40; Poetzsch-Heffter, Ule, and Dernedde,
Vom deutschen Staatsleben, Jahrbuch für öffentliches Recht
22 (1935): 1 ff., 265; clearly expressed in Lammers, “Staatsführung im Dritten Reich,”
Reich und Ostmark
(1938): 9 ff., 13, according to which National Socialism strives for a “just inequality.”

143.
Vogel,
Von dem Wesen des ständischen Rechts
(1937) (every professional body has rights characteristic of its type [
arteigenes Recht
], 16 f.); similarly, Best, “ ‘Die Weimarer Verfassung’ ” (1939), 759 f.

144.
Maunz,
Die Staatsaufsicht
(1938), 83 f.; he gives, by way of example, the exclusion of “people of alien race” (
Artfremde
) from “municipal swimming baths.” The “equality of the racially identical” (
Artgleiche
), he says, shows that if equal treatment were not accorded exclusively to the racially identical, there would be no equality in this country.

145.
Cf. Scheuner, “Die nationale Revolution,” 261 ff., 267, 273, on equality between those of the same species and “aliens.”

146.
Ibid.; Forsthoff,
Der totale Staat
, 39 ff.; Walz, in his essay “Gleichheit und Rangordnung im Recht” (1941), expounds the necessity of “dissimilation” of “aliens” and the “racially appropriate representation of the gradual development of the nation as a whole” (2214). In a later essay, “Neue Grundlagen des Volksgruppenrechts,” he demanded the “absolute dissimilation” of the racially dissimilar (Jews, Gypsies).
Völkisch
groups had to be treated according to their racial difference. Where “the line has to be drawn” cannot be decided in general terms but depends in part on the concrete political situation; at any rate it is necessary to preserve the cultural way of life of the
Volksgruppe
(school, language, church, welfare, education) (97). (Precisely these areas were the only ones left to the Jews after their exclusion from administration and business.) According to Klein, “Zur Stellung des Generalgouvernements” (1941), 227 ff., 262, the idea of
völkisch
inequality could also be applied to the way of life of ethnic groups (
Volksgruppen
) and states.

147.
In particular Walz, “Gleichheit und Rangordnung im Recht,” 2214 f.: “The dissimilation of the alien type can, among other things, lead to limitation of his legal status in certain areas of common law, to his exclusion from certain areas of communal life that serve the fundamental order of the
Volk
. The legal proceeding is not yet complete…. Having overcome … an abstract form of individual equality, we have only now created the space for genuine, rational equality in the sense of
suum cuique
.” Walz puts forward the same view in his book
Artgleichheit gegen Gleichartigkeit
, 40, according to which the Reich Citizenship Law shows the “new legal approach to framing people’s origins, also vis-à-vis a politically unsatisfactory transitional status.” For a similar view, see Forsthoff,
Der totale Staat
, 39 ff., who welcomes the “great purge” that followed the arrival in office of the “national government,” as well as the expatriation of political opponents (“renegades”); see also von Massow, “Die Tragweite der bisherigen Begriffe” (1936), 31: “Should the worthless (
Nichtwertige
) be deprived of rights? The development of the law has already shown the way to discover such enemies of the people (
Volksschädlinge
). One has only to think of the expatriation of numerous former Germans whose behavior led to loss of citizenship. Their exclusion from the national community occurred because they did not want to serve the nation, the state. It is inconceivable that such outcasts (
Volksfremde
) should enjoy the same legal rights as other national comrades (
Volksgenossen
).”

148.
Poetzsch-Heffter, Ule, and Dernedde,
Vom deutschen Staatsleben, Jahrbuch für öffentliches Recht
22 (1935): 265.

149.
This is exemplified by Stuckart and Globke,
Reichsbürgergesetz
, 135: These principles of racial and population studies “consciously refrain from judging the question of the superiority of one race over another. They take as their basis merely physical and spiritual diversity of the races and peoples made of different racial types. The danger inherent in racial mixture does not stem from the difference of value, but the different characteristics of the races. There is no absolute ranking of the races; but there are mixtures of related races that can be accepted without hesitation as Reich citizens, and there are crossbreeds of alien races who are a pernicious racial influence and destructive of the
Volk
.”

150.
Scheuner, “Die nationale Revolution,” 272.

151.
Gütt and Linden,
Kommentar zum Ehegesundheitsgesetz
(1936), 226.

152.
Cf. Forsthoff,
Der totale Staat
, 37.

153.
Franzen,
Gesetz und Richter
(1935), 19 f.

154.
“The National Socialist racial theory and its underlying racial principle do not lead to contempt or undervaluation of other peoples but rather to an acknowledgment of the tasks we must accomplish with respect to the appropriate maintenance and development of our own people” (Stuckart and Globke,
Reichsbürgergesetz
, 6).

155.
Forsthoff,
Der totale Staat
, 37; cf. also Frank,
Nationalsozialistisches Handbuch für Recht und Gesetzgebung
, introduction, xviii: The only reason for this exclusion of the “influence of alien races” from public life is “to protect and … preserve the vigor of the German people”; similarly, Lösener, “Die Hauptprobleme der Nürnberger Grundgesetze.”

156.
Lösener, “Die Hauptprobleme der Nürnberger Grundgesetze.”

157.
See also Stuckart and Globke,
Reichsbürgergesetz
, comments on sec. 1 of the law; see further Gütt and Linden,
Kommentar zum Ehegesundheitsgesetz
, 225; foreign criticism of the law was “incomprehensible”: after all, in the USA there were thirty states where to some extent the regulations prohibiting marriage between Negroes and whites went much further (17 ff.).

158.
Lösener, “Die Hauptprobleme der Nürnberger Grundgesetze.”

159.
Fraenkel,
Der Doppelstaat
, 136.

160.
Lorenzen, “Judentum und Judenfrage” (1939); in this sense see also Groß,
DR
(1939): 2 ff., 9.

161.
Forsthoff,
Der totale Staat
, 31 ff., explains that racial differences should not automatically mean enmity but that this would arise if the “racially different” impinge on the “territorial … or … spiritual Lebensraum of another people. That is why the Jew, without regard for good or bad faith and good or ill will, became an enemy and as such had to be removed as a threat.” (Apparently, who played the role of enemy or aggressor was determined by the supposed victim.)

162.
Best,
Jahrbuch der Akademie für Deutsches Recht
(1937), 132 ff., 132.

163.
Ibid.

164.
For further details, see Fraenkel,
Der Doppelstaat
, 93.

165.
Cf., for example, compulsory military and labor service for Poles from the Annexed Eastern Territories who were “capable of Germanization” and who had attained German citizenship until revoked.

166.
The order of September 20, 1941 (
MinbliV
[1941]: 1788), imposed on Jews (and Poles) a special “social compensation tax” in the form of a nondeductible 50% increase in income tax. By way of justification it was pointed out that Jews enjoyed the “protection of the Reich” without being German (Walk,
Als Jude in Breslau
[1975], 2). Membership in this “protective community” came at a high price. Incidentally, financial burdens were imposed on others in disfavor who came into conflict with the authorities; see also the judgment by the Reich Supreme Court in Supreme Court for Civil Cases, 155, 297, in the case of the mayor of Eutin, who was removed from his post after the seizure of power and taken into protective custody. Negotiations between his lawyer and the president of the higher administrative authority of the district (
Regierungspräsidium
) ended with a written declaration in which the mayor relinquished all claims with respect to salary and so forth and pledged to pay the government three thousand reichsmarks by way of compensation for the (supposed) damage to the reputation of the town of Eutin (despite the fact that the Civil Code does not recognize compensation for
dommage morale
). After this goal had been reached, the president of the district administration and the newly appointed mayor of Eutin showed magnanimity: both declared that the “affair was closed and further steps that might hinder the plaintiff in his career would not be undertaken. The government declared the protective custody order null and void with immediate effect” (Reich Supreme Court, ibid.). To rule out any further doubt, they requested a statement in which the plaintiff and his lawyer swore “that the declarations were given of their own free will and that no pressure was brought to bear.” There was an epilogue to this trial when the plaintiff later contested his declaration, renouncing all claims because of coercion. In view of the decree issued by the minister of the interior accepting jurisdiction in the matter on the basis of the
Ausgleichsgesetz
(Law relating to Compensation of Social Benefits—a Nazi law comparable to the
Schutzgelder
levies paid by Jews in the Middle Ages) of December 13, 1934 (
RGBl.
I 1235), the courts refused to hear the case. The Reich Supreme Court confirmed the earlier judgments.