"Non-Germans" Under the Third Reich (20 page)

Beginning about 1935, the decisions handed down by numerous superior courts—with the notable exception of the Prussian Administrative Supreme Court
²⁵³
—also maintained the position that this decree was promulgated not merely to achieve the concrete aims enumerated in the text itself; beyond that, it was interpreted to justify
all
measures taken by the executive “for the protection of the common interests of the
völkisch
community order.”
²⁵⁴
With such judgments in hand, the lawfulness of police actions could be justified on grounds of “raison d’état,” even in cases in which the offenses covered by the decree were not involved.
²⁵⁵
Accordingly, the Prussian implementing order dated March 3, 1933, was declared to be compatible with the spirit and intent of the decree of February 28, 1933, and therefore lawful; in all relevant decisions, however, it was emphasized by the courts that they were unable to test the necessity of the implementing order.
²⁵⁶

Accordingly, the decree of February 28, 1933, was also employed in the fight against churches and sects, against the German youth movement
Wandervögel
(migratory birds), and against antivaccinationists, either because there were deemed to be no legal restraints upon police action or with the aid of the theory of the “imminent Communist threat.”
²⁵⁷
In an (at the time isolated) opinion handed down on November 1, 1933, the Appellate Court of Berlin observed that “any … assaults directed against public security and order [were to be] considered as being Communist in the broadest sense of the term.”
²⁵⁸
This theory was later to engender some very strange effects indeed.

For instance, the Bavarian Supreme Court in Munich upheld a prohibition by the Reich minister of the interior, based upon the decree of February 28, 1933, that made it a crime for any member of the clergy to publicly announce the names of those parishioners who had left the church, on the grounds that according to the named decree, “any measures … for the restoration of public security and order are permissible
without regard
to the source from which a disturbance … has emanated.”
²⁵⁹
The Special Court of Hamburg reached a similar ruling in a case involving the Jehovah’s Witnesses.
²⁶⁰
The Baden Administrative Court declared the dissolution of a church association for the care of the infirm to be permissible, since this association “doubtlessly caused considerable harm to the local women’s association of the Red Cross in X.” This fact alone was considered sufficient grounds for the dissolution: “If the minister of the interior declares that this … competition puts important state interests at a disadvantage … the Court is powerless … not to accept this declaration.”
²⁶¹
The dissolution of a publishing house belonging to the Watchtower Bible Tract Society was justified with the consideration that it “[could] also appear advantageous … to the defense against acts of Communist, state-threatening violence to ban such associations in which Communist sympathizers
might perhaps
be concealed without the knowledge of their directors.”
²⁶²
In a case involving the members of a Catholic youth association who had staged group outings and sporting events and were therefore charged with violating a directive issued by the responsible district president based on the decree of February 28, 1933, the Prussian Supreme Court in Berlin declared that National Socialism (also) aimed to eliminate all tensions, since it was the true representative of the national community. The “way in which [the accused were charged with] emphasizing a split [contained] from the outset the germ of a demoralization of the German
Volk
, and
any
such demoralization [was], in turn,
likely
to provide
encouragement
to Communist activities and to support their aims.” Personal opposition to Communism on the part of the accused did not exempt them from punishment: “For … the
individual opinion
thus paraded before the court can only too easily serve to incite adherents of or persons
sympathetic
to Communism who
perhaps
at present are still
undecided
, who then go out and spread … the opinion that the National Socialist state does not after all have the people behind it.”
²⁶³

The same court declared the statements of a pastor against the “German Christians” to be an “
indirect danger
to the state,” since the dissatisfaction expressed in this manner prepared “the ground for the reemergence of Communist activities.”
²⁶⁴
Finally, the indirect “fight against Communism” was made to provide legal authority for the prohibition of the antivaccinationists (by the Reich Supreme Court)
²⁶⁵
and for discrimination against the members of taxi owners’ cooperatives.
²⁶⁶

There were many other means used to implement the concept of
völkisch
inequality. Provisions for criminals and persons classified as asocial included “special treatment” in the form of preventive detention under criminal law, forced sterilization, or “protective or preventive custody” by the police; for persons deemed undesirable for reasons of race or population policy, there were special measures of “public health policy” (marriage prohibitions), followed by the actual annihilation programs (the euthanasia program, the extermination camps); and, finally, for all other persons considered unpopular, for whatever reasons, there were the concentration camps, which were elaborated into a system of indefinite incarceration.

“Protective custody” was not merely a phenomenon associated with the Nazi revolution, which would have meant that it was temporary in nature; rather, it was a means of
preservation
of the dictatorship of the NSDAP.
²⁶⁷
Experts in police law were of the opinion that the state, if it aspired to the “national attitude” (i.e., antidemocratic, pro-Nazi), must also have the necessary means of correction at its disposal. Protective custody was part of “the essence of a truly political state that is free of liberal fetters.”
²⁶⁸
The thesis that protective custody was a means necessary for combating the “enemies of the state” was thus proved to be a fabrication.

In sum, if one considers the broad significance of the concept of special law, the
ultimate aim
of National Socialist legal policy can be said to have consisted in the destruction of the concept of common and equal rights, in the dissolution of all legal relationships between individual and community/state, in a tangled network of graduated (
völkisch
) rights and obligations, in a system of general inequality, that is, of arbitrary privilege and discrimination, in which each individual was assigned his position according to merit (to each his own [
Jedem das Seine
]) by the state leadership.

As an example of the system of privileges established to reward meritorious “national comrades,” which was developed parallel to the elaborate discriminatory system,
²⁶⁹
one might mention the amnesties for the Old Guard (Alte Kämpfer),
²⁷⁰
who received remission of sentences for crimes committed during the so-called Period of Struggle prior to 1933. Perhaps because of the war, plans for further privileges, such as the suggestion of Hans Frank that the Party leadership corps be exempted altogether from the purview of common criminal law and placed under the exclusive legal jurisdiction of the Party,
²⁷¹
were never put into practice.

For this system of unequal treatment, too, terms from legal history were misused—there was talk of “estate” law, of the “structured” body politic (
Volksganze
), and so on—all in order to veil the true character of a legal situation based upon “national comradeship” and create the illusion of continuity between National Socialism and the rest of German history, a continuity that in reality did not exist at all.

The firm ensconcing of the principle of special law in the legal system of the Nazi state, therefore, represented, by means of “legal dispensation,” a de facto departure from any legal order whatsoever and was thus the best means for carrying out the “state of emergency” (C. Schmitt’s term) against supposed internal enemies.
²⁷²
The system of absolute power of the Führer and the political monopoly enjoyed by the NSDAP ensured that this idea was rigidly centralized, both administratively and ideologically, and that it was enforced with all the efficiency the administration could muster. In connection with the two elements just discussed, therefore, the principle of special law, though it may have been principally (but not exclusively) directed at “non-German” persons and groups, also proves to be the decisive structural element in the Nazi system as a whole; it becomes the guiding principle according to which National Socialist society was to be structured and governed. This signified nothing more or less than the introduction of martial law at home;
²⁷³
and although order of a sort still obtained, its lack of any normative restraints meant that it no longer represented any kind of legal (much less just) order.

There is a direct line of descent leading from martial law at home to the horrible consequences of National Socialist despotism. For anyone whom the regime classified as alien, whether from the standpoint of political, criminal, racial, or population policy (the sick, the old, the weak), came to embody the polar opposite of the
Volksgemeinschaft
; that is, such persons were the “unworthy.” The unworthy, as Nazi propaganda never tired of repeating, had to be exterminated or, at the very least, rendered harmless as “parasites” on the “healthy body of the
Volk
.” Whereas, at first, many may have believed that “foreignness” brought with it merely an inferior legal status, one that was still within the German legal order, and whereas one might differentiate between the full legal status of the “racially acceptable” “ethnic comrades” and the limited legal status of alien “guests of the
Volk
,” that is, “membership in a community of legal protection” for foreigners and persons of foreign descent,
²⁷⁴
the use of vocabulary like
subhumans
ought to have made it clear that the final consequence of the principle of
völkisch
inequality would necessarily be the “neutralization” and thus the extermination of all ethnically unworthy persons. With remarkable “judicial” logic and consistency, which was later to prove extremely prophetic as well, the German Supreme Court as early as 1936 compared the status of special law on grounds of race with (civil) death, with the utter “destruction of the legal personality.”
²⁷⁵

The fact that the precept of special law cannot be limited or restrained once it has been accepted on principle is shown most plainly in a draft bill of the Reich Ministry of the Interior that almost progressed to the stage of legislative enactment and which, in a manner of speaking, rips the shroud from all previous euphemisms describing the practice of special law.

This bill, which will be discussed in detail at a later time, contained a so-called Law on Aliens to the Community that was to take effect on January 1, 1945. Under this law, all “persons foreign to the community” were to be placed under
police statute
(detention in “police camps” or “reformatories,” that is, in concentration camps or work houses).
²⁷⁶
Without benefit of
any
judicial rule, anyone was deemed “foreign to the community” who was classified as asocial or criminal by the offices of the Security Police. This meant that
anyone
could in fact be declared to be a “parasite,” “good-for-nothing,” “ne’er-do-well” (in the legal wording of the proposed bill) and excluded from the community of rights for
any
behavior.

The
völkisch
inequality of the Nazis thus became a generalized state of legal inequality; “foreign” became “foreign to the community,” to such an extent that racial discrimination represents only an
isolated
instance of the application of the National Socialist policy of special law. The principle that all people are born with the same rights, embodied in the law of citizenship or in a minimum standard of elementary rights, is turned on its head: everyone was by nature without rights, fundamentally outside the law, “to the extent that nothing was determined to the contrary.” According to this philosophy, the constitutional rights of the liberal era embodied the “selfishness of the individual vis-à-vis the state” and were “intolerable in the organic state.”
²⁷⁷
In the Nazi state, the possession of legal status is declared a privilege, the state of rightlessness the normal case, the rule.

Ambitious administrative leaders developed outlandish ideas, negating all historical development, that lost themselves in the murky distances of Teutonic prehistory: the expulsion of all “undesirables” from the German community of rights was to be followed by the return to a mystical community of arms and labor composed of all fighting Germans, from which not only “foreigners” but also children, women, the infirm, and so forth, would be excluded. For just as there could be no equality of treatment between “national comrades” and “non—national comrades,” legal equality of the sexes, of minors and the weak and infirm was unthinkable. Such ideas were by no means of theoretical interest only; they were not even specifically National Socialist in origin. Rather, they had already been current in
völkisch
circles before 1933, and after the Nazi seizure of power they fit even better into the “spirit of the times.”
²⁷⁸
For even in the Nazi state, legislators and administrators were anxious to carry on with traditional ideas. If one takes this mechanism into account, it no longer appears astonishing that the later anti-Jewish measures reveal numerous similarities and parallels to plans from the early phase of the administration of the Nazi state, analogies that run from using the same terminology (
citizen of the Reich, alien descent, Nordic ancestry, race protection laws
, etc.) all the way to the precise tracing out of an Aryan classification of the population for purposes of future race legislation.
²⁷⁹