The Law Under the Swastika (2 page)

The problem, however, is clear: It is practically impossible to retroactively erase a whole system of law—a statement that also applies to the legal system of the GDR that ceased to exist in 1990. Therefore the next question, as to which parts of the legal complex should remain valid and which should not, inevitably leads to conflict and to much whitewashing of the evil system. It is precisely this combination of “normalcy” and evil that made it so difficult for contemporaries to grasp the unjust nature of the Nazi system. Likewise, ever since 1945 and still today, we find it difficult to decide what part, if any, of the National Socialist legal system can be accepted as “kosher” by us. From our perspective, the principle laid down by the Potsdam conference, according to which all Nazistic laws that provided Hitler’s regime with a legal foundation must be abrogated, has to be considered not only naïve and undifferentiated, but also as a source of injustice and the failure of de-Nazification after 1945 because of this very naïveté.
⁶

The problem does not end with the acceptance or rejection of laws and legal sentences. Much of the punishment against real or imagined opposition to the National Socialist system was imposed outside the framework of law—that is, in the concentration camps. That the inmates of the illegal system of the concentration camps were not automatically compensated after the end of the Third Reich, and that pensions of SS members usually exceed the monthly compensation paid
to victims of the National Socialist system are well-known facts that illustrate the vagueness of the concepts of ‘just’ vs. ‘unjust’ within the framework of our discussion. In retrospect, even in these cases there is no sharp division between right and wrong, and even the distinction between regime and opposition does not provide us with a clear criterion for distinguishing ‘just’ from ‘unjust.’

These examples lead us to the third point: the question of
continuity
from the Third Reich to the systems of postwar Germany. The Nuremberg Trials of 1946 were a legal act to punish and put an end to the entire National Socialist system. To ensure the effectiveness of the outcome, a parallel process of de-Nazification was launched. But it was the legal sector in particular that best demonstrated the shortcoming, if not the failure, of this process. It was impossible to find a formula by which a Nazi could be distinguished from a “non-Nazi,” and therefore even Nazi judges, among other servants of the National Socialist system, could be reinstated in their jobs. In addition, the minds of the decisionmakers of the Allies in Germany were more preoccupied with the Cold War than with anything else. The four years of occupation introduced many new elements into the legal system of divided Germany, but the system and its participants remained very much the old ones. Stolleis states very clearly that there is little to say against those who accuse the judicial system of the Federal Republic of failure to deal with the Nazi judges on the level of criminal law, or of unwillingness to deal with these matters altogether. The fact that no Nazi judge was punished for his activity in the Third Reich is very revealing and throws the whole legal and judicial system of the Federal Republic into disrepute. Old Nazi judges covered up past crimes of members of their own guild or those of other Nazis, confirming the issues described at length in two popular books about this matter.
⁷
That jurists Wilhelm Stuckart and Hans Globke, instrumental in the implementation of the Nuremberg Laws, could become civil servants after 1949 (Globke became state secretary in Konrad Adenauer’s
Kanzleramt
) is clear proof of the continuity from the Third Reich to the Federal Republic. The case of Professor Theodor Maunz, dealt with in one of Stolleis’s chapters, is even more convincing: A pillar of Nazi law (professor of law in Freiburg from 1935), Maunz was a stalwart of postwar Germany’s system of law, author of a popular textbook on German constitutional law, Bavarian minister of culture from 1957 to 1964. Though he lost his ministerial job because of his writings during the Third Reich, he remained an oracle of the German legal system until
his death in 1993, when it was discovered that throughout that period he had served as an adviser to a neo-Nazi organization.

The paradox of continuity and ambiguity became apparent also in a parallel affair in the early 1960s. Theodor Oberländer, a minister in Adenauer’s cabinet with a known Nazi past, used two lawyers, law commentators like Maunz during the Third Reich, to defend himself while maligning a member of the opposition, Carlo Schmid, as if his wartime activity had been no less prejudicial. The outcome of this lawsuit created the impression that everyone who lived through the Third Reich was in the same boat that should not be rocked retrospectively, because everyone was open to blackmail. Again, enmity and lack of criteria lead to the inability to distinguish between quantities of right and wrong in the Third Reich. Thus, personal continuity unavoidably also meant continuity in the spirit of the court, perhaps even in law and politics. This has cast a heavy shadow over the democratic, liberal image of postwar Germany.

But we should not deal with the legal sector as an isolated case. In many other sectors continuity was no less conspicuous. Just to mention one example: Robert Ritter, the expert par excellence on the “Gypsy question” of Nazi Germany, was consulted by the authorities of the Federal Republic as well.

If there is a lesson to be learned from this bizarre story of continuity, it is not how to find a sophisticated way to differentiate between ‘just’ and ‘unjust’ within the heritage of an evil regime. Rather, the lesson is that we must monitor the signs of evil and fight them before the evil regime is able to take power. This lesson should be known best to those of the legal profession.

—
Moshe Zimmermann
Jerusalem

SOURCES

General Introduction

Revised version of the article “Nationalsozialistisches Recht,” in A. Erler and E. Kaufmann, eds.,
Handwörterbuch zur Deutschen Rechtsgeschichte
, vol. 20 (1981), cols. 873–892.

Chapter One

Essay in
NS-Recht in historischer Perspektive
(Munich and Vienna, 1982).

Chapter Two

Essay in M. Stolleis and D. Simon, eds.,
Rechtsgeschichte im Nationalsozialismus. Beiträge zur Geschichte einer Disziplin
(Tübingen, 1989), 1–10.

Chapter Three

Essay in M. Stolleis and D. Simon, eds.,
Rechtsgeschichte im Nationalsozialismus. Beiträge zur Geschichte einer Disziplin
(Tübingen, 1989), 177–197.

Chapter Four

Vierteljahreshefte für Zeitgeschichte
(1972), 16–38.

Chapter Five

Nihon University Comparative Law
6 (1989): 11–28.

Chapter Six

Essay in K. Jeserich et al., eds.,
Deutsche Verwaltungsgeschichte
, vol. 4, part 2 (1985), 707–721.

Chapter Seven

Essay in E. V. Heyen, ed.,
Wissenschaft und Recht der Verwaltung seit dem Ancien Régime
(Frankfurt a. M., 1984), 147–162.

Chapter Eight

Essay in
Festschrift für Ch. F. Menger
(Cologne, 1985), 57–80.

Chapter Nine

Expanded version of two reviews, in
Geschichte in Wissenschaft und Unterricht
(1978): 650–654; and in
Rechtshistorisches Journal
7 (1988): 93–95.

Chapter Ten

Rechtshistorisches Journal
2 (1983): 211–222.

Chapter Eleven

Essay in
Festschrift für H. Coing
(Munich, 1982), vol. 1, 383–407.

Chapter Twelve

Kritische Justiz
26 (1993): 393–396;
Frankfurter Allgemeine Zeitung
, December 21, 1993.

Historical Introduction

The Judicial System and the Courts in the Weimar Republic

I.
The revolution of 1918 and the Constitution of 1919 (the so-called Weimar Constitution) transformed Germany from a monarchy into a republic. Germany became a democratic state with a strong presidency (modeled after the American presidency) and a chancellor at the head of a bicameral parliament (the Reichstag as the popularly elected lower house and the Reichsrat as the upper house representing the interests of the
Länder
, the states). The former
Länder
(Bavaria, Württemberg, Baden, Saxony, and especially Prussia) continued to exist, and together with the Reich they formed a federal state.

The structure of the legal system that had evolved between 1871 and 1918 was essentially retained. In Germany, as in France and Italy (and in contrast to the Anglo-American legal tradition), law codes have historically played a dominant role in the legal system. After the revolution of 1919, these law codes remained in force: the Civil Code of 1900, the Penal Code of 1871, and the Laws of Procedure. The function of the courts was merely to “apply” the rules laid down in the codes. The German legal system has significantly less judge-made or common law than the Anglo-American legal system.

The structure of the courts comprised three levels. The highest appellate court was the Reichsgericht (for civil matters and criminal cases, and after 1927 also for litigation involving labor law). At the middle level were the Oberlandesgerichte in the federal states. The lower courts for civil and criminal cases were the Amtsgerichte and Landgerichte, the local and regional courts. Specialized courts also existed for specific areas of the law, for example tax law (Reichsfinanzhof) and social law (Reichsversicherungsamt, Reichsversorgungsgericht). Beginning in the late nineteenth century, Verwaltungsgerichte (Administrative
Courts) were set up to handle disputes between citizens and the state. Their function was to examine the lawfulness of administrative acts by the government with regard to its citizens. The most important of these courts was the Preußische Oberverwaltungsgericht in Berlin. At that time there was no supreme administrative court at the federal level. There was also no administrative court with comprehensive jurisdiction comparable to the U.S. Supreme Court or the modern-day German Bundesverfassungsgericht (Federal Constitutional Court). The powers of the Staatsgerichtshof, created after 1919, were limited.

Most of the judges who staffed the courts during the Weimar Republic had come to office before 1914. They were politically conservative and assumed a stance of “reserved loyalty” toward the republic. In political trials they were accused of rendering “class justice,” and there was a good deal of truth to the charge.

The Nazi Era

II.
The Nazi regime initially took over traditional law, the courts, and the judges en bloc. But already during the first months of 1933 there were dramatic and ominous signs that the regime was abandoning the traditional
Rechtsstaat
, the state based on the rule of law: Jewish judges, notaries, and lawyers were dismissed; criminal laws were stiffened; the principle “no punishment without law” was abolished; political enemies were sent to concentration camps. The mass killing of political rivals and others in June 1934 went unpunished; Hitler proclaimed a law that declared these murders “acts of national self-defense and as such lawful.”

In the fall of 1933 the Reichsgericht acquitted several communist functionaries from involvement in the Reichstag fire for lack of evidence. In response, an angry Nazi government set up a Volksgerichtshof (the notorious People’s Court) in April 1934 to deal with political cases and staffed it with National Socialists. The Volksgericht was essentially a revolutionary tribunal, a quasi-legal instrument of terror to persecute and intimidate political opponents of the regime. Between 1937 and 1944, it imposed the death penalty on 5,191 defendants.

As for the Verwaltungsgerichte, when they made occasional attempts to review measures taken by the Gestapo (Geheime Staatspolizei, the secret police), they were stripped of their jurisdiction in “political matters.”

The other courts adapted to the new situation as well, occasionally adopting the new political language merely to hide behind it. Although the courts as a whole did not offer any significant resistance, it is not
accurate to describe them collectively as “Hitler’s willing instruments.” The picture painted by scholarship is becoming increasingly differentiated and complex.

During the war, the judicial system was drastically curtailed. Stages of appeal were shortened or abolished. The younger judicial personnel were drafted into the military. Administrative jurisdiction ceased almost entirely. Paradoxically, the supreme administrative court, the Reichsverwaltungsgericht, was set up as late as 1941, though it failed to acquire any importance. The rest of the system was dominated by an increasingly harsh penal justice: External and internal pressure transformed it into a true instrument of terror during the war. However, since penal justice still failed to perform its tasks to the regime’s satisfaction, Sondergerichte (special courts) were set up everywhere. During the war they dealt with everyday crime and at times imposed barbaric punishments. There were also the special courts of the military, so-called Wehrmachtjustiz (military justice), which tried to discipline the fighting troops with draconian punishments and thousands of death sentences. Finally, the darkest chapter of the judicial system was the execution, in particular by the SS (Schutzstaffel, “protective force”), of an untold number of people without trials and sentences.

The Postwar Period

III.
After Germany’s capitulation on May 8, 1945, the Allies assumed “supreme authority” and rebuilt the judicial system from the bottom up. In the process there were characteristic differences between the American, the British, and the French Zones. The Soviet Zone took a separate path altogether, under the domination of Josef Stalin.

The prevailing statutory law was “cleansed” of Nazi ideas and brought back. Judges were subjected to “de-Nazification” and rather generously restored to their positions. This explains a strong continuity in terms of personnel, which had unfortunate consequences for the prosecution of crimes from the Nazi era. The structure of the courts corresponded essentially to the model of the Weimar period. The Reichsgericht was renamed Bundesgerichtshof (Federal Supreme Court).