"Non-Germans" Under the Third Reich (7 page)

These three principles, however, are nowhere presented as a unified concept, as it were in a party platform, in programmatic regulations and articles, or in statements by the Nazi leadership or its adherents. They are the results of an analysis of the pertinent norms, standards, guidelines, judicial rulings, and official pronouncements and are thus to be understood as notional summaries of the National Socialist program for the administrative and judicial sectors.
³⁴

The focus of the present empirical study rests on its portrayal of the way in which the principle of racial inequality was put into practice, since this principle is doubtless the most important political idea of National Socialism and therefore the most important “legal principle” in administration and law.
³⁵
Preceding this is a discussion of all three of the above-mentioned structural elements of the judicial and administrative system; for they are inseparable from one another, representing a dense web of parallel, intersecting, and intermeshed ideas and developments, such that the principle of racial inequality can be examined only together with the other two structural elements of the Nazi state.

III. Legal and Administrative Principles in the National Socialist State

1. The Führer Principle

a. The Concept

At the heart of National Socialist ideology was the Führer principle. This principle, which achieved its political breakthrough on January 30, 1933, rested, as Hitler had already revealed in
Mein Kampf,
on the principle that the entire nation (
Volk
), from the family to the central institutions of the state, was to be represented by one leader in possession of unlimited power.
¹
It must be remembered that the Führer principle, although not specifically a National Socialist idea (but rather an essential feature of all hierarchic structures), had never before been taken to such an extreme by any modern state. At first this process took place virtually unnoticed, since even before 1933, tribute, mingled with mystical notions (leadership as “fullest mandate,” “most unlimited jurisdiction”),
²
was rendered to the traditional idea of authoritarian leadership. The National Socialists were able to make an apparently seamless connection with these traditions.

The Führer principle, already broadly disseminated in so-called folkish (
völkisch
) literature and the press even in the Weimar period, derived from romantic-conservative notions that were in turn rooted in the longing for a unifying force; its model was above all the monarchist empire (
Kaisertum
) of the Teutonic period and the Middle Ages; the dream was to return to the “estate” system of the past and to its great leader-figures. In the political and economic turmoil after 1918, the Führer idea experienced an unanticipated renascence, one that extended also into the political realm, where the problem of leadership, that is, of a leader with comprehensive authority (
Reichspräsident
), now played a significant role.
³

Of much graver import than its political significance, however, was the extent to which the Führer principle was rooted in the intellectual and social life of the governing classes. In the vacuum of a “state robbed of its monarch,”
⁴
all the difficulties that might have been attributed to the Kaiserreich and the war were laid at the feet of the republic; longing for the vanished authority of the Kaiser nourished antipathy against the parliamentary system, indeed against politics in general.
⁵
The Führer principle of the National Socialist government, which became state doctrine after January 30, 1933, seemed at first merely the continuation and the climax of the dominant “nationalist” mainstream zeitgeist.

In reality, however, there followed a profound transformation of the traditional leadership principle, the significance of which transformation, although it was set forth time and again in countless speeches, official pronouncements, and political rallies by leading National Socialists, often went unrecognized. Simply put, this transformation consisted of an open rejection of politics and all rules and customs of state life. It was considerably simplified by two factors.

First, the new Führer principle was nowhere formally or legally secured. Neither the party platform of the National Socialist German Workers’ Party (NSDAP) of 1920 nor the “basic laws” enacted after 1933 proclaimed the absolute Führer principle. The latter could at best be inferred
indirectly
from the fundamental norms of National Socialism (such as, for instance, the Enabling Act).
⁶
To that extent the Nazi regime had a free hand in utilizing for its own purposes the long-standing demands of the zeitgeist for a strong leader or central power. Thus, the National Socialists adopted only the outward forms of the traditional Führer principle, the rituals of leader and followers, of mass rallies, marches, processions, flag dedications, oath-takings, and so forth; those were augmented by the cult of violence and action (stylized as the antagonism between deed and thought), which exercised a peculiar attraction at that time.
⁷
However, the traditional idea of leadership and authority, which had previously been informed by community-oriented and
paternalistic
elements (responsibility, duty, public service, and so forth) as well as by the principle of
legal
restrictions placed on the powers of the leader, was in effect almost completely abandoned.

The rejection of these traditional elements was further facilitated by the fact that the Führer idea in National Socialism was entirely devoid of rational foundations; it was neither a political nor a judicial concept but a structure composed of equal parts of fantasy and wishful thinking. In Nazi ideology the world presented itself as a “colorful and spellbinding historical play,”
⁸
in which myths and dreams took the place of realities. It was precisely from these romanticizing, apolitical elements, which were proclaimed in the idiom of a quasi-religious doctrine of redemption,
⁹
that the new concept of leadership derived its irresistible fascination.
¹⁰

For however disparate the positions of the so-called right-wing parties may have been regarding National Socialism, they were that much more in agreement with the Nazis in their rejection of parliamentary democracy and their struggle for a central leadership authority. In the Weimar period, therefore, all parties to the right of the Deutsche Volkspartei already actively, unanimously, and vehemently maligned the parliamentary form of government and the parties that supported it; using familiar generalizations to characterize the so-called party-ridden state as the scapegoat for each and every political and economic difficulty, the so-called national circles suggested that there was only one way out: the return to the old “authority” of preparliamentary times. Democracy, according to this view, was synonymous with all the contemporary negative symbols (Marxism, socialism, antinationalism, etc.); in this light, the Reich government was portrayed as the very embodiment of leaderlessness and weakness, as well as being blamed for the shameful past (the Treaty of Versailles, the revolution of 1918–19). The National Socialists merely turned such sentiments deftly to their own account.
¹¹

Accordingly, in the Weimar Republic—a society that had been unable to accept the idea of democracy—the degree to which hopes for a return to the political order of the Kaiserreich failed was precisely the extent to which desire for a towering leader-figure grew stronger: for a mythically intensified personage (possessed of qualities like “unerring certainty” and “prophetic glance”) who would appear as a rescuer in dire need,
¹²
thus achieving an even greater impact.

Given this longing for security and subordination to the will of a single individual, the Führer idea became the unifying force that would bring the people together (“the German people agree that they need a leader on account of their disagreements”).
¹³
It was thus only logical that when this idea crystallized and coalesced around the figure of the Führer and Reich chancellor, all social classes should have been carried along by the “momentum of the seizure of power,”
¹⁴
even though the aversion of Hitler and his adherents to the rational working criteria of the bureaucracy, more particularly to the judiciary, and indeed to any sort of intellectual activity whatsoever was to make itself felt only too quickly.
¹⁵

b. The Making of an Absolute

An immediate consequence of the apolitical nature of the National Socialist Führer principle, derived as it was from the realm of mysticism, is also one of its essential features: its vague and limitless character, one that had nothing in common with traditional concepts of leadership, that is, no normative definition of rights and obligations placed upon the office of leader by means of religion, law, tradition, privileges, or the like.
¹⁶
Accordingly, there is a lack of any serious scholarly analysis of the Führer’s authority from the standpoint of origin, legitimacy,
¹⁷
meaning, or scope.

Made to serve as an explanation for the origin of the leader’s authority was the presumption, impossible to prove by any means, of a historical or divine “calling”
¹⁸
(that is, usurpation) or “installation” of the Führer “from above.”
¹⁹

On the question of legitimacy, Hitler, those who paved the way for him, and those who aped him, all made it unmistakably clear that the only basis and justification for the Führer’s authority was power and that they strove after power for its own sake.
²⁰
The “objective right” of the Führer to take any given action was, according to Hitler, grounded in his own “necessity”; the “personal right” of the Führer lay in his success.
²¹
The only conceivable form of expression to be allowed the people in the Führer state, therefore, was acclamation, not in the sense of prior assent but as ex post facto consent to decisions already reached by the leadership.
²²

Hence the legitimation of the Führer’s authority lay in a blatant tautology: the authority of the Führer was justified because it existed.

Above all else, National Socialist teaching declared any legal restriction upon the authority of the Führer to be an impossibility.
²³
Only at the outset was half-hearted lip service paid to the idea that legal obligations were incumbent on the Führer; this was soon abandoned, to be replaced by the maxim that the authority of the supreme leader was
comprehensive, responsible to no one,
temporally and materially
unlimited,
and the wellspring of all law.
²⁴
The inevitable consequences of this, to be sure, were correctly inferred by only a few, since in official parlance the term
authority
was used in place of the term
absolute power of the leader,
²⁵
thus making it appear as if the National Socialists had adopted the traditional concept of authority along with its moral and legal delimitation.

From the absolutism of the Führer principle, furthermore, it followed not only that commands of the leader were to be unconditionally obeyed but even that the simple
will
of the Führer was to be held as a binding principle.
²⁶

This obviated any necessity of tying expressions of the Führer’s authority to statutory forms (laws, decrees) or indeed to any legal structure whatsoever.
²⁷
Hence the will of the Führer was adopted by academics,
²⁸
as well as by the head of the administration (the Reich minister of the interior), as “supreme law”
²⁹
and declared to be the supreme axiom of all legal authority. The consequence was that even merely incidental statements of the Führer, in conversations or speeches, were made out to be binding standards, a consequence that was not only discussed in an academic way
³⁰
but (in the latter years of the Third Reich) also became part of actual political practice.
³¹

c. Effects on the Governmental Sector

If National Socialism and its Führer principle (“the will to power”) succeeded, with its cast of utter irrationality and its immoderate demands (“the will to create a new humanity”),
³²
in mobilizing previously unheard-of energies in the domain of politics, its effects in the realm of law and the state remained always merely
destructive
and
negative
. The vagueness and totally antilegal nature of this concept
³³
meant that all theories of public law lost their meaning and that the way was paved for an incursion of the irrational and emotional into public and constitutional law. To be sure, certain scholars did attempt to derive the Führer principle of National Socialism from the history of political ideas since the French Revolution of 1789 using traditional academic concepts.
³⁴
To a far greater extent, however, these ideas were castigated as “rational” structures that ought to be abandoned as soon as possible.
³⁵