"Non-Germans" Under the Third Reich (32 page)

V. Professional and Labor Law

The development of special-law provisions regulating the professions was initiated parallel to anti-Jewish measures introduced in the laws governing public service.
¹
Like the laws directed against Jewish judicial and local officials, these laws brought about abuse and defamation of Jewish attorneys as well as bans on their entering judicial administration buildings, reported in many cities as early as April 1933.
²
Among the Jews murdered at that time there were numerous Jewish attorneys-at-law.
³

The first measures taken under special law, then, were also initiated in April 1933. It requires no closer examination to show that each and every one of the following measures restricting or prohibiting “non-Germans” from free exercise of the professions under special law was unconstitutional, since they violated the guarantees of equal rights for all under article 109 and of professional freedom under article 151 of the Weimar Constitution, which was never formally suspended.
⁴
These measures therefore lacked any basis in law even by National Socialist standards. Even on the assumption that the enabling act of March 24, 1933,
⁵
which empowered the Reich government to enact regulations that deviated from the Weimar Constitution,
⁶
had effectively amended the latter, the result would be no different. For from the standpoint of procedure, even the Third Reich recognized the principle of the lawfulness of administration (despite countless violations in individual cases), according to which decrees required legal authorization, whereas implementing regulations required the authority of law or decree. But almost all measures prohibiting “non-Germans” from certain profession were either issued in the form of decrees lacking any foundation in Reich law,
⁷
or else they were ordered by internal administrative directives, some of which greatly overstepped the bounds of the authorizing regulation in law or decree.

1. Professions Subject to State Licensing

a. Attorneys and Related Professions

At the forefront of special-law measures were those taken against professions whose practitioners required special state accreditation or licensing, such as attorneys-at-law, notaries, physicians, and so forth, and were thus most easily subject to regulation by the state. The first target was, naturally enough, attorneys-at-law and related professions,
⁸
which, since they take the part of the individual and his interests against the state, are never highly regarded in totalitarian regimes.
⁹
The National Socialists, however, found particular reason to detest them in that a relatively high percentage of attorneys in the larger cities were of Jewish descent.
¹⁰
If the image of the attorney in National Socialist propaganda was generally negative in coloration—because he was, by virtue of debasing contact with Jews, greatly influenced by the idea of the “advocate … originating in the liberal era,” who was held to be “selfish” and “gossipy,” subsisting on the “labor of others” (according to Göring)
¹¹
—how much more was the Jewish attorney seen as a “parasite” creeping into the soul of the “host people” in order to “poison” not only the legal profession but also the people as a whole.
¹²
As usual in the preparation of uniform special legislation, Jewish attorneys were to be neutralized, first by the creation of legal insecurity and uncertainty and confusion through numerous individual measures, demands, and arbitrary acts by state and Party offices, to the point where a set of centralized regulations would be hailed as a virtual restoration of legal guarantees—even if they contained still harsher measures than those of the ones they were designed to replace.

Thus, on March 14, 1933, the League of National Socialist German Jurists called for all judges of foreign race to be immediately purged from the courts and for a
ban on licensing
of any attorneys of “foreign race.” Members of the KPD and the SPD were to lose their licenses effective immediately.
¹³
The National Socialist commissar for the Prussian judiciary and later Prussian minister of justice, Hans Kerrl, petitioned the courts to admit Jewish attorneys to the bar only in proportion “to the ratio of the Jewish population.”
¹⁴
On April 1, 1933, Kerrl prohibited all Jewish notaries from exercising their occupation, and on April 4, 1933, he issued a preliminary general ban on representation by all non-Aryan attorneys in Prussia.
¹⁵
This was preceded as early as March of that year by a prohibition on their entering the buildings of the justice authorities.

After the boycott of April 1, 1933, the Reich Ministry of Justice issued an injunction signed by State Secretary Freisler in which (in a procedure that ran counter to all previous notions of constitutionality) the ministry undertook to engage in plain blackmail: every Jewish notary was immediately to declare “voluntarily” that he would refrain from all professional activity, failing which the ministry would be answerable for nothing, since “the people’s outrage would no longer suffer official documents to be issued at the hands of Jewish notaries.”
¹⁶
Also not officially published were further measures taken by the Prussian judicial administration, such as an order forbidding Jewish attorneys to sign written statements.
¹⁷
As with all writings by Jewish authors, the publications of Jewish attorneys were suppressed and, beginning in October 1936, ultimately taken out of circulation.
¹⁸

The Reich Bar Association—formed by emergency decree of the Reich president dated March 18, 1933, and provided with new jurisdictional responsibility (i.e., disciplinary actions before a court of honor),
¹⁹
thus creating the Reich corporative representation long desired by members of the bar and entirely in keeping with the National Socialist system of strict centralization—issued “guidelines for the practice of the profession of attorney-at-law” in which attorneys “of German blood” were called upon to collaborate “in the great tasks of the
Volk
” and the National Socialist movement.
²⁰

With the ground thus prepared for revision of the law governing attorneys, the Law on Admission to the Legal Profession was promulgated on April 7, 1933,
²¹
at the same time as the so-called Professional Civil Service Code. The former was due to expire on September 30, 1933; thereafter, attorneys of non-Aryan descent as defined by the Professional Civil Service Code
could
have their licenses revoked (sec. 1); however, such revocation was
not mandatory
. Exceptions were granted to “frontline soldiers” and their next-of-kin, as well as to those attorneys who were already licensed on or before August 1, 1914—provisions similar to those of the Professional Civil Service Code. The judicial administrations were authorized to prohibit attorneys from representing clients pending revocation proceedings. Applications for new licenses by non-Aryans were to be rejected. New applicants were to furnish “proof of Aryan status.”
²²
Under section 3 of this law, revocation or denial of licensure was mandatory in cases in which the individual concerned had “been involved in Communist activities.” This provision was not to be applied to non-Aryan attorneys who, prior to January 30, 1933, had joined an organization of the NSDAP or otherwise “proven” themselves to be “nationalists.” Similar regulations were soon issued for patent attorneys.
²³
Jewish tax consultants were also eliminated in the spring of 1933.
²⁴

Since these laws of April 1 and 4 effectively stripped non-Aryan attorneys and notaries of their licenses, all of them were obliged to take up the fight to renew their accreditation. It was not up to the authorities to prove that the law was applicable; rather, the persons concerned had to show that they were not covered by the new regulations. Accounts from affected persons report how arduous, time-consuming, and degrading this fight could be, even if they were covered by the exceptions provided for in the law.
²⁵
For example, it was not enough for the applicant to present a police declaration to the effect that he had never engaged in Communist activities; rather, he was obliged to sign a sworn statement with the local bar association that he had neither belonged to the Communist Party nor ever represented Communists in court proceedings. If the statement was accepted, he had to wait almost three months before again being allowed to represent clients, as did non-Aryan notaries, provided they could prove that they had been frontline soldiers. However, troublesome non-Aryan notaries were dismissed under section 4 of the Professional Civil Service Code of April 7, 1933, no later than September 30, 1933, the deadline by which notary status had to be revoked. Among other grounds for dismissal was membership in one of the democratic parties of the Weimar Republic, if the party had entered into an election agreement with the SPD.
²⁶

Unlike cases involving non-Aryan civil servants, about whom official figures were never published (for fear of adverse publicity), successes in the case of the non-Aryan attorneys received lengthy notices in the judicial literature, according to which 1,500 attorneys were affected by these initial special legislative measures; of those, a good third were from Berlin and 1,364 from Prussia as a whole.
²⁷

Harsher restrictions soon followed. Particularly significant was the law of July 20, 1933,
²⁸
under section 6, paragraph 5, of which applicants who had been dismissed from service pursuant to the Professional Civil Service Code could be denied licensure; that is, dismissed administrative and judicial officials might be denied access to the profession of attorney. The Law to Amend the Reich Regulations on Attorneys of December 2, 1934,
²⁹
pronounced a ban on the admission of Jewish attorneys to the Reich Bar Association; furthermore, Jewish attorneys whose licenses had been revoked could no longer use the professional title.

Here, too, however, legislative regulation was by no means the end of the matter; discrimination was carried well beyond the possibilities provided for in law. That the law could be amended by internal service directives was by 1933 already a given under the judicial leadership of the Führer state: a general injunction of the Prussian Ministry of Justice dated April 24, 1933, regarding the “selection” of candidates for the bench and for the bar provided that, in future, “selection” of applicants “within the framework of Reich law” was to be made “also on the basis of an evaluation of the personality of the applicant as one who is conscious of his membership in the
Volk
as a whole.” This evaluation was to have “equal weight beside the other, legally prescribed prerequisites.”
³⁰
But this in itself put the licensing procedure outside “the framework of Reich law.” Although the attorney’s claim to the respect due professional status was outwardly emphasized by a facade of individual regulations,
³¹
professional activities by attorneys of “foreign race” and the exercise of related occupations by Jews was systematically curtailed
extra legem
in other ways as well. The representation of German clients by Jewish attorneys was held to be “conscious sabotage,”
³²
as it was “intolerable” for “Jews to play any sort of role in the administration of German law.”
³³

Licensing regulations, too, were interpreted more strictly. In Prussia, at least, the discretionary provision of the law of April 7, 1933 (“the license may be withdrawn”), was, by decree of the Ministry of Justice, applied as if it were a mandatory regulation in cases in which the attorney in question was deemed generally politically undesirable (although sec. 3 of the law provided for compulsory expulsion only in case of “Communist activities”). Here, too, the guiding principle was that of every totalitarian regime: when in doubt, whatever was not permitted and/or confirmed was considered prohibited or suspicious. It was not up to the authorities to demonstrate the undesirability of the person concerned; rather, license was granted only when his political reliability was positively established. To this end, the authorities (the presiding judge of the Appellate Court) were to investigate ex officio. The same was true, mutatis mutandis, for new applicants.
³⁴

Critical remarks, even if made only in passing, and other vexatious behavior on the part of Jewish attorneys led to their expulsion from the bar and thus to the expiration of their licenses; the fact that they were Jews was seen as an aggravating factor in the offense.
³⁵
(Jewish attorneys who were permitted to carry on in their profession were subject to increased duties and obligations.) Measures taken with respect to Jewish attorneys’ offices (the sale or purchase of Jewish practices) or the maintenance of friendly relations between German attorneys and their Jewish staff were punished as (grave) “professional violations.”
³⁶