The Law Under the Swastika (29 page)

That triggered another wave of letters to the editor, press releases, and articles in professional journals.
¹²
The Federal Minister of Justice became involved, and surviving convicted defendants from those trials spoke up.
¹³
Verhoeven and Krebs wrote a new closing statement, but it was still open to attack.
¹⁴
During parliamentary questioning, the federal government argued that a declaration invalidating all sentences was not necessary given the repeal legislation after 1945. Moreover, since the People’s Court had acquitted some defendants, such a declaration would go too far.
¹⁵
On the fortieth anniversary of the execution of Hans and Sophie Scholl, there were church services, panel discussions, and the laying of wreaths. A letter by the Federal President was read, there were speeches by the Bavarian Minister President (
Bayernkurier
, February 25, 1983), the Minister of Culture, the Lord Mayor of Munich, the President of the University of Munich, theologians, philosophers, and many others. In the midst of all these declarations, warnings, corrections, and even continuing legal debates, the film was shown and
became more and more widely known. Teachers went to see it with their students, and the public bought books about the White Rose.
¹⁶

Everything thus seemed to be turning out to the satisfaction of Verhoeven and Krebs. Though they may have fired their broadside a bit off the mark, its impact exceeded expectations. However, the latest act in this drama was bothersome. The Federal Ministry of Justice informed the Foreign Office that the revised trailer of the film was legally indefensible. According to the Foreign Office, the film therefore could not be loaned to foreign Goethe Institutes via Inter Nationes.
¹⁷
The attempt to get the director to drop the closing statement failed. Somehow the entire affair did not seem to have a happy ending.

To understand what happened, we must bear two things in mind. First, the film touched on essential elements of prior attempts to come to terms with the Nazi past: the sentencing of Nazi criminals, the rehabilitation of victims, the question about the validity of “right” over “law,” and suspicion about the power of the judicial system to clean its own house. Second, the showing of the film coincided with a major publicity campaign on the fiftieth anniversary of the Nazi seizure of power. Here are some examples of what was going on at the time: Shortly after the debate over the White Rose, the forged Hitler diaries were published. With the perpetrator still in pretrial detention, the magazine that fell for his forgery described itself as an “embarrassed” victim, but it wanted to sell its embarrassment for as much as possible. At the same time, the petition for a retrial of the “Reichstag arsonist” Marinus van der Lubbe was finally turned down.
¹⁸
The chief of the SS in Lyons, Klaus Barbie (Altmann), ended up in French pretrial detention, and the German judicial system was relieved that it would not have to prosecute this case. In East Berlin, one of the SS murderers of Oradour (June 10, 1944) was sentenced to life in prison on June 7, 1983. According to press reports, Alois Mertens, Secretary of State in Bonn, wanted to get to work “immediately” on winning the release of Rudolf Hess. After the retired Finanzrichter Wilhelm Stäglich published his right-wing book
The Auschwitz Myth
(1979), the University of Göttingen sought to strip him of the Ph.D. it had awarded in 1951, even though the law it invoked has been called a “Nazi law.” In mid-1983 former members of the SS divisions SS Bodyguard Regiment Adolf Hitler and Hitler Youth celebrated in Bad Hersfeld what they called their “fiftieth anniversary”
(Dienstjubiläum)
. Finally, prosecutors in West Berlin, following an eleven-year break between 1968 (the Rehse decision of the Federal High Court)
¹⁹
and 1979, resumed investigations against former judges and prosecutors of the People’s Court and other special courts. Of the 565 people originally in this group,
89 were still alive in 1983. Investigations against 37 of these were dropped. As the year 1985 unfolds, we shall discover what the investigations against the remaining 52 people can yield at this point in time.
²⁰

II.
If we want to step back somewhat from this background and disentangle the main lines of the discussion, it is best to begin with what is beyond dispute. The uncertainty about the “validity” of the sentences against the White Rose that was caused by the first version of the closing statement has been resolved. The legislative branch has stripped the verdicts of legal force, not only in Bavaria but also in the other former occupation zones.
²¹
All that remains unclear is whether there are still repercussions of those verdicts worth rescinding (register entries), and whether there are verdicts that still need to be overturned and have remained in force because a postwar petition did not meet some requirement or other. So far there has only been speculation on these two issues.

There are three areas in which one might look for the practical significance of the general annulment of the verdicts of the People’s Court that the Bundestag called for: (1) the effect of annulment on what are presumed to be the remaining cases, though in all likelihood this has almost no relevance whatsoever for the people who were affected; (2) easier prosecution of former judges and prosecutors, now that the Bundestag—evidently not only an organ of the political will but also of historiography—has declared that the People’s Court was not a court; (3) the effect of nullification as a political symbol (although, since such a symbol was cheap in 1983, it probably would not have been worth very much).

Some have voiced hopes that such a resolution will reveal “whether the continuity constructed by the judicial system can be broken, and whether the legislative branch can bring itself to vindicate the victims of National Socialism in a manner that has legal force.”
²²
It seems to me, however, that such hopes greatly exaggerate the effect of such a late declaration, which has practically no consequences and was extorted from the members of Parliament by public opinion.

It is striking that those who champion the annulment of the verdicts—which in their eyes are thus “valid,” after all—simultaneously maintain that the People’s Court was an instrument of terror and as such could not have rendered any legally valid “verdicts.” Thus, the goal is to remove merely the appearance of legal validity for the purpose of rehabilitating the victims. Quite apart from the question of whether the victims need this in the first place, since they do not need the Bundestag to affirm their unsullied honor, we have here arrived at the
heart of the problem. Were the norms by which Freisler, the notorious chief judge of the People’s Court, rendered his judgments “valid law” at the time? Did resistance fighters such as the White Rose “objectively violate laws that were valid at the time”? Were the judges of the People’s Court subject to laws?
²³

Verhoeven and Krebs, who have raised these questions, distinguish between “valid law,” on the one hand, and “elements of the Nazi terror system,” on the other. Valid law to them means nonterroristic, “just,” normal law. The criterion for this distinction is a natural-law yardstick that allows one to distinguish between a normal legal order and a system based on injustice. What they are doing is thus in principle no different from what the Allies did after 1945 through the legislation of the Control Council, the legislatures of the occupation zones and the
Länder
, and the Federal Republic: seeking a way to distinguish between “normal” valid law from that period and “law” that should be considered “nonlaw” because it violated elementary notions of justice (natural law, human and civil rights of classic liberal provenance).
²⁴

A parallel notion has emerged on the institutional level. According to this view, there were institutions in the Nazi state that functioned “normally” and could have been found in any other state. In addition, there were institutions that were elements of the system of terror and as such could produce nothing but “injustice.” This distinction is evidently based on the idea that whatever served the Nazi terror was not law (in the sense of being materially “just”) and is therefore not “valid.” This layman’s idea that legal norms and other sovereign acts are invalid if they are felt to be unjust or immoral is widely shared. It is based on an unhistorical understanding of natural law, which holds, for example, that what is unjust today must also have been unjust in the past. This is precisely what Hans Filbinger meant, though from a different perspective, when he said that what was law back then could not be immoral
(Unrecht)
today. This argument confuses or deliberately obfuscates the formal validity of a law and the justice of its content. Those who use it ignore the fact that it is easy to label a legal norm “valid law”: All one has to do is show that it was formally enacted in accordance with the written or unwritten constitutional rules and that it was recognized by the legal community at the time. Finally, proponents of this argument overlook the fact that calling a norm “valid law” or a sentence “valid” says nothing about its moral qualification. In other words, legal norms or sentences from the Nazi period could be based on law that was valid at the time and still be in force, while simultaneously being highly unjust in substantive terms and morally reprehensible. The doctrine in the Federal Republic, however,
established by Gustav Radbruch and adopted in the administration of justice, has felt the need to temper this point of view by arguing that cases of blatant and obvious violations of justice must be assumed to be invalid. The argument says that legal norms can no longer claim validity “if they are so obviously contradictory to the principles of justice that the judge who wanted to apply them or accept their legal consequences would render injustice instead of justice.”
²⁵
I consider this inconsequential, at least for the areas in which Nazi terror and Nazi injustice wrapped themselves in the mantle of the legal order, and I am inclined to let formal legal validity extend as far as the legal form did. Beyond the legal form begins brute force—that is, at that point the problem posed by the legal form ceases to exist. Admittedly difficult are the transitional cases where the legal form has been cracked but not entirely abandoned. There may well be no “clean” theoretical solution for these cases.

However, I will not pursue the problem further in the realm of legal theory. The following question is probably more important: Let us assume it to be possible, using criteria drawn from natural law, to separate ex post facto a legal order of the years 1933–1945 from a Nazi terror system that existed alongside it. The question would arise whether this is what historical reality looked like. Aren’t contemporary value judgments being used anachronistically to produce the desired result for criminal justice? Is this not a case where Ernst Fraenkel’s idea of the “dual state,” a fertile idea in itself, has been taken to absurd lengths?

There is no question that the Nazi system was capable of enacting law. The system emerged during a period of transition from a veiled to an open breach of the constitution, out of a coalition of the political right that was in formal terms legal. It established itself by virtue of prevailing domestically and winning recognition internationally (not least from the Vatican) as the legal Reich government. Thanks to the doctrine of the lawmaking power of a successful revolution, it was able to leave behind its dubious birth (
Entscheidungen des Bundesgerichtshofs in Zivilsachen
5:96). The new constitutional situation was fluid; in any case, it could no longer be measured against the Weimar Constitution, large parts of which had been repealed. The sovereign acts of this regime were at the time and in the context of the regime valid law. Other countries and the majority of the people recognized and abided by this legal order—notwithstanding all the obvious moral and political objections to the regime. Someone who denies that National Socialism produced “valid law” is either trying to cling to a doctrine of legal validity that is based on natural law and formulated independently of
the facts, with a moral condemnation perhaps being projected into law, or else seeking to deny, with apologetic intent, that the broad mass of the German people accepted the regime and its domestic order right up to the end of the war. These are two very different motivations, but they lead to the same result.

That is why it is important to emphasize repeatedly how typical the combination of normality and terror was for the Nazi regime. The regime’s ability to function was based on the fact that the traditional elites in the civil service, the judiciary, the military, and the economy could reassure themselves by looking at the partial “normality” and justify to themselves and others their involvement through daily collaboration. Terror could thus appear as a regrettable exception—and surely not approved of by the Führer! Thus law that is considered “normal” and law that is considered terroristic propped each other up. To separate them is to distort legal-historical reality. An equally grave consequence of such a separation would be the exoneration of “normal” justice and the day-to-day administrative oppression brought about by it.

In general, the resistance fighters thus violated valid law. Therein lies their courage and dignity; this can only increase our respect for them. They broke the terrorist legal rules imposed by the Nazi regime out of moral conviction, and they knew it. Internally they did not accept these rules as just, and they had moral contempt for those who implemented them.

They were condemned by an institution of the system that called itself a “court,” and which, judged by its record of 5,286 death sentences, was really the “death machine of the Nazi party.”
²⁶
But does this mean that the People’s Court was therefore not a “court” in the formal sense of § 1 of the GVG, the Law on the Constitution of the Law Courts? Since this question usually stirs up emotions, as though the person who poses it also agrees with the Rehse decision by the Federal High Court, I shall examine the arguments in greater detail.