The Law Under the Swastika (32 page)

A direct manifestation of the shift in political power was the gradual restructuring of the body of judges through a deliberate personnel policy on the part of the SED. An initial phase of improvisation was followed
by a period when Communists, Social Democrats, and bourgeois elements coexisted. It lasted until the SED felt strong enough to drive out the noncommunists, especially Social Democrats, in systematic purges.

The SED ran into particularly vigorous opposition in Berlin. As Hilde Benjamin has described it, “the president of the reopened Superior Court of Justice for Berlin, Dr. Georg Strucksberg, also resisted every effort to bring new manpower into the Berlin judicial system, even though the number of judges declined to 213 in 1946. Until 1948 reactionary forces in leading positions of the Berlin judicial system succeeded in preventing courses for people’s judges (
Volksrichterkurse
) from being held.”
⁵⁰
A similar situation prevailed in Thuringia, whose “bourgeois” state judicial administration found itself in constant conflict with the central administration. The clashes intensified into a genuine judicial crisis, which was debated in the Thuringian Landtag (state parliament) under the slogans “separation of powers,” “independence of judges,” and “people’s judges.”
⁵¹
One side advocated that judges be politically tied to the SED (selection of the prosecutors general and the presidents of the Higher Regional Courts by the parliaments), that they be subject to dismissal, that former members of the Nazi party not be used on principle (in keeping with SMAD Order No. 204), and that gaps in personnel be filled by rapidly trained “people’s judges.” The other side, basing itself on the ideas of the liberal
Rechtsstaat
and natural law, promoted the model of the apolitical judge immune from dismissal and criticized the sweeping refusal to rehire former members of the Nazi party. The crisis was intensified by a decision of the Administrative High Court of Thuringia, which challenged the contention that graduates of the people’s judges courses were qualified to hold judicial office.
⁵²

The SED, with support from SMAD, pushed through its policies both at the center and, after 1948 at the latest, in the
Länder
. Graduates from the first courses for people’s judges (1946–1948)
⁵³
who were members of the SED went to work for the prosecutor’s office. It was not long before the SED also chose lay judges and gave them uniform “schooling.” By 1950 the proportion of laymen trained as “people’s judges” among judges and prosecutors had grown to 50 percent. Only in the 1950s was the SED able to push through its policies at the law schools in Berlin, Leipzig, Halle, and Jena. This success allowed the party to slowly dispense with the political makeshift of the “people’s judges.” Private practice also existed for some time as a fall-back for lawyers who did not want to work in the judicial system or were not hired.

2. The administrative concept in the
British zone
, centralist in nature with a clear predominance of the military government, was relatively similar to its Soviet and French counterparts. However, the decision to pursue the reconstruction of the judiciary on the basis of Oberlandgericht (Higher Regional Court) districts steered the development in a special direction. The eight presidents of the Oberlandgerichte were affiliated directly with the Legal Division of the Control Commission for Germany and “functioned practically as Ministers of Justice at the time.”
⁵⁴
They issued legal decrees, had the right to initiate laws, and acted as expert consultants on legislation. After October 1, 1946, the legislative authority of the presidents and some of their authority on matters of personnel—namely, the right to appoint the presiding judges of courts and the heads of prosecutor’s offices—was transferred to the Central Office of Justice of the British Zone, which was headed by Wilhelm Kiesselbach.
⁵⁵
At first this office was significantly more important than the Ministries of Justice of the
Länder
, which did not receive their full authority until 1947.

Initially the presidents themselves tried to smooth out differences in the way the law was administered in the various Oberlandgericht districts. But the call for a Supreme Court grew steadily more urgent.
⁵⁶
Eventually, once the Reichsgericht had been shut down for good and a bizonal court had failed, the Supreme Court for the British Zone was set up in Cologne. It functioned until September 1950, and it formed, both in its personnel and in the content of its decisions, the most important connecting link between the tradition of the Reichsgericht and the Federal Supreme Court (Bundesgerichtshof) that was inaugurated on October 8, 1950.
⁵⁷

A detailed account of how the various jurisdictions were reconstructed or newly created is not possible within the framework of the present essay.
⁵⁸
The rebuilding of the bar, including the quarrel over the admission of lawyers from the East to the bar in the British zone,
⁵⁹
would be a chapter to itself. One topic we cannot skip over, however, is personnel policy in the judicial system of the British zone. Bernhard Diestelkamp, drawing on the study by J. R. Wenzlau, summarized the findings as follows:

As for jurists in the British zone, a change from the initial policy of radical exclusion to a policy of punishment began as early as October of 1945 with the “50:50” or “piggyback rule.” It stated that for every jurist with a clean political past, one jurist who was compromised by his past (though at first only formally) could be rehired into the judicial system. Despite this early relaxation of the policy, it was not possible to fill all posts in the judicial system, which by the middle of 1946
was once again thoroughly organized. In mid-June of 1946, the British therefore lifted the 50 percent clause in favor of all those who had been cleared by the de-Nazification procedures. This set in motion the return of growing numbers of judges and prosecutors. By mid-1948, 80–90 percent of Landgerichtsräte and Landgerichtsdirektoren (county court judges and directors) were former party members.
⁶⁰

A recent study of Braunschweig has examined this process in concrete detail.
⁶¹
The solidarity among jurists and what was referred to as their “outstanding professional qualification” and anticommunist attitude—the only acceptable element of Nazi ideology—proved stronger on the whole than the principle of not rehiring judges with a Nazi past. In addition, the occupying powers themselves did not act in a consistent manner. The process of de-Nazification itself was seen as a burdensome compulsory exercise imposed by the victors. Hence jurists were willing to help colleagues get a job, even without the need to invoke a common background, training, professional membership, and the like. The British tolerated this return of the old judicial personnel, though in part they were also outmaneuvered. As a result, “contrary to the original intent of the British to undertake a particularly radical cleansing of the judicial system, it was here, in particular, that the almost complete restoration of the old personnel structure was completed long before the founding of the Federal Republic.”
⁶²

3. The judicial system in the
American zone
was not rebuilt on the old court districts but via the
Länder
that were created in 1945. Judicial administration culminated in the Ministries of Justice, which in turn came together in the Länderrat for a certain degree of cooperation. Still, there was neither a uniform court system covering the entire U.S. zone nor a common Supreme Court.
⁶³

De-Nazification of the judicial system
⁶⁴
was pursued in a broad and bureaucratic manner, and the outcome was as unsatisfactory as it was in other professions. It failed precisely because it was set up as a mass process, and it had to be halted in 1948.
⁶⁵
As in the British zone, many opportunities were found to rehire as “auxiliary judges” jurists who had been nominal members of the Nazi party, as well as those with a real Nazi past; later they were quietly given permanent positions. Despite an initial shortage of personnel, the judicial system in the American zone was quickly completed in the traditional sense. It also exerted a strong influence on the other zones, especially after the merger into the bi-zone, which also gave rise to an administrative agreement concerning the administration of justice.

4. In judicial policy, as in occupation policy as such, the
French zone
pursued its own path, one strictly concerned with demarcating the
French sphere. When it came to the structure of the system of courts, the French stuck with the pre-1933 Law on the Constitution of the Law Courts, in keeping with the Control Council’s Law No 4. Procedural law was uniformly regulated for the
Länder
. All questions concerning the judicial system were handled centrally from Baden-Baden, and important decisions were handed down by the Supreme Military Court in Rastatt.
⁶⁶

The style of administration was that of a colonial power, “based neither on ideology nor on morality, but oriented solely toward its usefulness to the French state.”
⁶⁷
After a particularly harsh phase of initial measures, moral cleansing and democratization—goals that were very important to the Americans—no longer seemed to play a special role. Little work has so far been done on de-Nazification and the rehiring of judicial personnel.
⁶⁸

5. The situation of the judicial system in
Berlin
was not comparable to that in any of the occupied zones.
⁶⁹
To begin with, there was a joint judicial administration, which, as I have indicated, ran into problems especially in the Soviet sector. The growing tensions in the Allied Headquarters and the crippling of the Control Council also dragged the judicial system into the Berlin crisis in 1948. The Berlin administration split, and an exodus of judicial personnel to the West began. In 1949 the President of the Superior Court of Justice for Berlin, Dr. Strucksberg, and the prosecutor general, Dr. Neumann, cleared out of their offices in East Berlin. A separate Landgericht and the Superior Court of Justice were set up in the West. In the East, meanwhile, the vacuum was filled relatively quickly in keeping with the SED’s ideas.

As one can see, it is difficult to give an overall assessment of the organizational rebuilding of the judicial system in the occupied zones and in Berlin. Even though the starting situation was much the same everywhere, the respective national legal traditions of the occupying powers and the basic political lines of occupation policy led to different results. For instance, the Western zones did not take a coordinated organizational approach, while the Soviets and the Americans essentially pursued similar paths. On the other hand, the Western zones and the Soviet zone took a diametrically opposite position on the rehiring of judges compromised by their political past.

As for the intellectual outlook of judges and the results of their administration of justice, the differences in personnel policy were far more momentous than the organizational differences, which in any case were gradually smoothed out in the Western zones. Personnel policy is indeed the key to the quite conscious and deliberate continuation in the West of the traditions of the Reichsgericht, the Reich Fiscal
Court, the Reich Insurance Office, and the Higher Administrative Courts.

V.
“The German legal system of today presents itself to the observer as a structure of many components, which for the time being is held together by the pre-Nazi German legal tradition.” This is how Walter Lewald aptly characterized the situation that was created between 1945 and 1948.
⁷⁰
This being so, the judicial system had considerable difficulty determining what should be applied as “valid law” in the first place. These difficulties began with the procuring of texts and continued in questions of whether a regulation was “still,” “no longer,” or “once again” valid and what the occupying power had said about it. Add to this the grievous absence of uniform guidance by the Higher Courts and a lack of communication among the courts through a reliable publication of decisions. Moreover, jurisprudence was slow to resume its analytic, critical, and descriptive work.

However, the problems of determining what should be regarded as “valid law” and how it should be applied were not primarily technical in nature. Rather, they were intimately connected to the entire political climate, the personnel structure of the judiciary, and the “prior understanding” of the judges. A variety of balances were struck between the justice officials of the occupying powers and the German legal profession, which had remained intact in the West. Respected members of the profession with a clean political record (E. Schiffer, W. Kiesselbach, H. Schetter, H. Freiherr von Hodenberg, G. Radbruch, and others) gained considerable influence in the process, because they could act with impeccable professional qualifications and a self-confidence born of a clear conscience. In their dealings with the occupying powers they propagated a judicial system based on the central notion of “depoliticization.” This was a catchword with a variety of meanings: It aimed at judicial independence from interference by the occupying powers, a commitment to natural law and supra-temporal spiritual values, and a return to the principles of the civic
Rechtsstaat
. The experience of the massive politicization of the judicial system under National Socialism, together with the widely shared desire not to hear another word about politics, seemed to make the champions of this position nearly unassailable.
⁷¹
Only a few scattered voices pointed out that a thoroughly restorationist program could also sail under the flag of depoliticization and that the vaunted apolitical judges before 1933 had in fact been quite political in their thinking and decisionmaking.
⁷²
The good intentions of its advocates notwithstanding, depoliticization was also a shield against pressure from the occupying powers to remove former party members
among the judges and against the punishment of colleagues, a task the victors imposed upon a reluctant judicial system.