The Law Under the Swastika (10 page)

This attitude called upon the legal scholar as an expert to provide building blocks for the renewal of the law: “An immeasurable treasure of ancient and inherited Nordic wisdom has been passed down to us in the older Germanic legal sources. We can draw from them the great ideal of justice, the Germanic criteria of justice, and the great formative ideas that constantly recur as leitmotifs in all parts of German law.”
²³

Since this treasure had supposedly been squandered in the course of history, and had been further diminished by the “national tragedy” of the reception of Roman law, the task at hand was to reassemble this treasure and resume the struggle against the reception of Roman law. A doctrine of national spirit
(Volksgeist)
—far removed from Savigny’s ideas, narrow-mindedly conceived, ethnically trivialized,
²⁴
and usually transmitted in the line from Georg Beseler to Otto von Gierke
²⁵
—was now made available to the party ideologues, who hammered it into the simplest propaganda slogans.
²⁶
At the same time, professors of legal history took over, to a greater or lesser degree, key words from the Nazi vocabulary, either out of genuine conviction and the desire to distinguish themselves for the task of “legal renewal” or as a form of camouflage. The fact that even a few Romanists were involved (H. Lange, G. Dulckeit, E. Schönbauer) merely shows how powerful was the tornado that swept up all public language.

Once we have noted “affinities” in language and way of thought, we are also able to recognize—beyond the superficial attribution of guilt in the postwar period—that the educated middle class and the National Socialist regime were dependent on each other. Broad sectors of the middle class felt that the overthrow of the self-paralyzing Weimar party-state and the transition to an authoritarian national regime was liberating. The driving forces behind this were deep-seated fears of “Bolshevism” and social degradation, as well as a longing for leadership in a society that seemed chaotic and threatening. The Nazi regime, for its part, could not govern without middle-class intelligence and capable personnel in the administration, the judiciary, and the educational system. The result was a partial symbiosis. The events over the following years—the Röhm murders in 1934, the struggle against the churches after 1934, the anti-Jewish pogrom of 1938, the outbreak of the war in 1939, the “euthanasia” program in 1940–1941, the murder of the Jews, the resistance movement—slowly broke down this symbiosis. In the end the middle class realized with resignation not only that
its fundamental ideals had been eroded, but also that it had played its part in maintaining the façade of “normality” that was so important to the regime.

The Germanists among the legal historians also had to admit that they had hailed this regime as an emanation of the eternal German spirit and the historical fulfillment of the primeval German will, in the hope that they would in return be entrusted with important tasks of legal policy. One example of this was Justus Wilhelm Hedemann’s passionate support for the “People’s Law Code”
(Volksgesetzbuch)
,
²⁷
a support that was all but blind to reality.

The question of how we should assess the scholarly output in the field of legal history during this confusing period has no simple answers. To be sure, hardly ever has so much pompous nonsense been said and written by scholars in so short a period as was the case specifically in the years 1933–1935. It was “an agitated time.”
²⁸
On the other hand, it is undeniable that—precisely within the framework of that “normality”—scholarship in legal history marched on undeterred by the political circumstances. However, between the extremes of empty rhetoric and nonpolitical expertise there was a third group of writers. These were the scholars who had not relinquished their claim to pure scholarship, but who reacted consciously to the political oscillations of the time and—either in agreement or in dissent—imparted to their work the particular accent it would not have had in other circumstances. Is it therefore possible to say that apart from emphatic agreement, accommodation, and quiet nonpolitical industry, there were also genuine “advances” in scholarship? Advances that were stimulated by the prevailing ideology and the greater distancing from the results of nineteenth-century scholarship it entailed? Did the field of legal history, as well, experience a “modernization” that was initiated by National Socialism?
²⁹

Finally, the scholarly topic I have outlined here also includes the situation of legal history after 1945. By that time the discipline had lost many of its best minds in the fields of Roman and canon law, and international contacts had been severed and had to be laboriously reestablished. In the Soviet occupation zone, later the GDR, legal history found itself in an unfavorable political climate and was all but suppressed in its “bourgeois” form.
³⁰
In West Germany we can speak of continuity in spite of the rapid disappearance of a certain kind of Nazi vocabulary and the replacement of the Germanic-German idea of “ethnic-national community”
(Volksgemeinschaft)
with the idea of “freedom.”
³¹
After all, for more than a decade a priori ideas from transcendental philosophy—now for the most part couched in terms of
Christianity and natural law—prevailed, and they continued to direct the task of legal history toward finding certain guiding ideas within the historical material and bringing them to light. The field of Germanic law, in particular, recovered after a brief period of uncertainty. The
Savigny-Zeitschrift für Rechtsgeschichte
, arguably the most important journal in German legal history, soon reappeared with an unchanged makeup and with Heinrich Mitteis at the editorial helm. Looking back over the first hundred years of this journal in 1961, Hans Thieme felt he could write: “The fact that Mitteis was able to reconnect with the past
without a break
may be seen as a sign of inner health.”
³²
And Adalbert Erler added in 1988: “It is conservatism—in the spirit of which the science of legal history is pursued—that accomplished such miracles—though ‘thrones may break asunder and kingdoms shatter.’”
³³

THREE
Was There “Progress in Legal History” during the Nazi Period?

I.
One observation about the development of historical scholarship has been confirmed many times over: New historical insights depend not only on improvements in the available sources and the skill and industry of the scholars who interpret them, but also on changes in the political situation as it is experienced by scholars. Whether the new insights as such deserve to be called “progress” and in what sense we can even speak of “progress” in the historical disciplines are important questions. We can leave them unanswered for now, as long as we agree not to impart to the word
progress
the meaning of something absolute and quantifiable, and to see it instead as a positive assessment by a given community of scholars who have agreed that a more recent interpretation comes closer to the “historical truth” than an older one and therefore represents a relative improvement.

It is in this sense that legal historians during the era of National Socialism advanced theses which, despite their obvious connection to the circumstances of the time, were recognized as “progress” after 1945 as well.

However, mentioning National Socialism and “progress” in one breath—progress in the sense of the elimination of outmoded social structures and a burst of technological innovation—was tabooed after 1945, at least as long as some apologists tried to combine the horrors of the regime with its reduction of unemployment, the construction of the Autobahns, the development of the people’s radio receiver, the creation of the Volkswagen, and the provision of Winter Relief into some kind of overall balance sheet. It was not until the 1960s that sociologists pointed out the kind of modernizing function National Socialism had played for the society and economy of the Federal Republic through the destruction of traditional loyalties and values, the propaganda of the “national community,” and the ravages of war and the
misery of refugees.
¹
Even if scholars, somewhat at a loss, called it “pseudo-modernization” on the grounds that National Socialism was reactionary and supposedly incapable of building lasting structures, the fact itself was recognized. And this offered a starting point for conceptualizing National Socialism itself as a crisis phenomenon of industrial society, as the dead end, so to speak, during a period of stress in the process of modernization.
²

These questions, which have been discussed in the historical profession, form the backdrop to a similar problematic issue in the history of legal scholarship: The impact of the Nazi era freed up certain traditional topics of legal history by breaking the spell of the nineteenth century that had bound them. Those topics included the alleged
individualism of Roman law
, the historical aspects of the
separation of public and private law
, and questions about the meaning and extent of the
reception of Roman law
in the late Middle Ages and the early modern period.

II.
When German legal historians began their lectures in the summer semester of 1933, there were already signs that the change of government on January 30, 1933, was unlike any previous one. Jewish colleagues no longer appeared at some of the faculty meetings and their lectures were canceled, heated discussions took place in university committees, new rectors had been appointed and gave speeches reflecting the new spirit of the time, the Nazi party became a noisy presence at the universities, and every scholar was wondering what all this meant for himself and his work.
³

Those swept up by the rising tide of anti-Semitism did not have to worry about such things; for them the only real question was when to leave and where to go. All other scholars who remained in their positions could wait and see, and they intended to do just that.
⁴
It was still unclear what effect the political changes would have on research and teaching in their fields. In particular, point 19 of the Nazi party program (“We demand that Roman law, which serves a materialist world order, be replaced by German common law”),
⁵
which struck experts as bizarre, hung as a vague threat over the fields of “history of Roman law” and “Roman private law,” with scholars unable to decide just how seriously to take it.

The fact that the legal historian Karl August Eckhardt (1901–1979)
⁶
had become a department head in the Reich Ministry for Science, Education, and People’s Education seemed to be a favorable sign for legal history. Then on July 22, 1934, the new regulations on legal training went into effect.
⁷
The new rules emphasized the historical element of
legal education by requiring that students should “acquire an overview of the entire intellectual life of the nation, as one should expect from an educated German man. This includes knowledge of German history and the history of peoples who have had a favorable influence on the cultural development of the German
Volk
, in particular the history of the Greeks and Romans” (par. 4).

The obligatory historical part of the examination that was introduced at the same time was intended to give students a chance “to demonstrate their understanding of the interconnections in the history of the German people” (par. 13, sec. 5). Of course, the possibility of testing Roman law in the
Referendar
examination
⁸
was dropped, and with it a protective barrier that until then had more or less concealed the looming “crisis of Roman law.”

The League of National Socialist German Jurists
⁹
invited legal scholars to a meeting on December 20 and 21, 1934, to discuss the draft of a curriculum plan that was to go into effect a month later, on January 18, 1935. Siegfried Reicke (1897–1972) spoke at this meeting about legal history, Hans Kreller (1887–1958) about Roman law.
¹⁰
Eckhardt gave a summary talk on the study of jurisprudence.
¹¹
The meeting reaffirmed that the overall official line was not unfavorable to legal history. It was repeatedly emphasized that the educated “German man”—women students were thus by definition excluded from the study of the law—had to know something about Roman history, and consequently German jurists had to know something about the history of Roman law.
¹²
Even a quote from
Mein Kampf
proved helpful: as Hitler had put it, “especially in historical instruction we must not be deterred from the study of antiquity. Roman history correctly conceived in extremely broad outlines is and remains the best mentor, not only for today, but probably for all time. The Hellenic ideal of culture should also remain preserved for us in its exemplary beauty.”
¹³

With the first round against point 19 of the party program apparently won, interest now shifted to the concrete shape these plans would take for teaching at the universities. The new curriculum combined the older courses on German private law and Roman private law into “History of Private Law in the Modern Period.” This was a modernizing step many felt was long overdue.
¹⁴
It combined two courses that dated back to the creation of the Civil Code in 1900 and had become so isolated as to have virtually no function at all. It expressed in words the “reconciliation”
(Überwindung)
of the Romanist-Germanist dichotomy, and it served to lighten the curriculum as a whole by combining two courses into one. At the same time “Roman” private law had been cleverly made to disappear, so it would no longer offend party
comrades who had no expertise in this field.
¹⁵
Much the same happened to “History of Roman Law,” which, as W. Kunkel later said, “was now tolerated under the lightly veiled neo-classical term ‘History of Ancient Law.’”
¹⁶