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Authors: Michael Stolleis

Tags: #History, #Europe, #Germany, #Law, #Administrative Law, #Legal History, #Perspectives on Law

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1. Jurists unconsciously, and in keeping with the maxims of their training, proceed from the existing law, from which they derive their guiding perspectives and criteria of evaluation. For example, Rudolf Echterhölter, in his study of public law under National Socialism, arranged the material in accordance with “the constitutional value judgments and principles that have crystallized today, precisely after the experiences under National Socialism. The material has been arranged around them even if corresponding principles were not yet present in the Weimar constitution, and the administration of justice under discussion therefore did not, from the perspective of the time, concern itself explicitly with questions of constitutional law.”

This approach is unhistorical and goes against the generally accepted
methodological principle that a period must be measured by its own premises and its documents made comprehensible within their own context. The Basic Law, conceived as a political response to the experiences under National Socialism, cannot be the “correct” historical yardstick with which to measure National Socialism.

2. Jurists have a habit of letting themselves be guided by models of causality and fault derived from criminal and civil law. The narrowing of causation and fault—in the sense of a subjective allocation of responsibility—that is peculiar to legal thinking excludes entire causal chains that could be of interest to historians. Examples of this are not only the above-mentioned books by Schorn, Weinkauff, and Echterhölter, but especially Schweling’s work on military justice. The guiding question for each author was whether the jurists in question were “guilty” because their decisions reveal the presence of “National Socialist ideas.” To that end they drew up groups that bear an ominous resemblance to the categories used on de-Nazification questionnaires.

Similarly, Echterhölter’s study ignores all those “parts of public law that offered few footholds for National Socialist ideas.”
This means that broad areas of public law are passed over in silence and that the relationship between these areas and those that did offer “footholds” remains unclear.

An impartial historical examination of Nazi law, one that is also not influenced by the legal perspective after 1945, must free itself from such categories of guilt and from the fixation on politically interesting points in order to reach a balanced overall picture.

3. It is typical of jurists that they are systematically trained to ignore, suppress, or dismiss extralegal motivations. They learn to frame situations to let the “legal question” come to the fore. This technique has its own good reasons in a state under the rule of law, and it is also founded on the division of labor in solving social conflicts. However, if applied to historical situations, it has a distorting effect: for what matters in these situations are, not least, the “extrajuridical” motivations, and our interest lies in the way the law is interwoven with the totality of its social determining factors. Jurists, accustomed to regarding all this as legally irrelevant, will find it difficult to let their perspective embrace not merely what is “legally relevant” but the totality of historical conditions.

As a result, legal works generally accentuate the normative scaffolding of events under discussion, a scaffolding that can be found in law gazettes and compendia of legal decisions. The reality that leads up to these norms, carries them, and is shaped by them is often reduced
to a few general remarks, since the study of the law provides hardly any systematic guidance on how to come to grips with it.

4. In some cases the perspective is distorted not so much by an exclusive concern with the normative facts as by the elimination of entire procedural steps. For instance, it seems characteristic of historical accounts written by judges that they pay little attention, when it comes to criminal law proceedings, to police investigations (or the activities of the Gestapo) and the way in which sentences were carried out. Instead, they focus on the field of work concerned with rendering decision, the very field that is assigned to them also under existing law. In addition, they are accustomed to describing events from the perspective of decisionmakers, not the perspective of those at the receiving end of their justice. As officials in service to the judicial apparatus, they are hardly willing to take a detached view of how the entire judicial apparatus operated and functioned as a pillar of the National Socialist system. Here, too, the individual would be asked to assume a dual role—that of acting within the system and that of describing the system from outside with some claim to objectivity. Experience has shown us that such a dual role is more than most people can manage.

5. Jurists, unlike historians, have traditionally been raised with the belief that the law in its entirety forms a “system,” and that it must therefore in principle be possible to describe and reconstruct it free of inconsistencies and contradictions. This makes it very tempting to find a system even where reality was chaotic. Just as jurists are ready, within the existing law, to take seriously the charge that something is contrary to the system, they will be inclined to interpret National Socialism, too, as a “system,” in any case as an “unjust system.” Consequently they will smooth out contradictions that historians could describe without scruples; to the jurists, these contradiction are primarily an annoyance. The effect of this will be particularly evident in an account of a dictatorship like National Socialism, where the lack of a system was an inherent feature of the system.

A study of the Nazi period must be approached differently from a study of the legal ideas of the Carolingians
This view is widely held, but it means different things depending on the context in which it is expressed. It is obvious that the nature of Nazi sources demands different methods (examination of files, interviews), but this does not pose a fundamental problem. A study of National Socialism, like a study of the Carolingians, is essentially concerned with interpreting the written evidence of a period.

More often than not this view means that National Socialism represents
such a singular historical phenomenon that the historian’s conventional methods have failed to come to grips with it. The intention of a person who uses the argument in this sense could be to demonize National Socialism, in the face of which historical science must capitulate as before an unsolvable mystery. It could also be to point out that public language and reality were separated by a particularly wide abyss under National Socialism.
Consequently a study in the field of Nazi law can be criticized for discussing National Socialist legal theory on the level purely of the history of ideas, without regard for the gap that separates this kind of writing from legal reality.

In most cases, though, something else is meant when works on the Nazi period are grouped together as a special genre of historiography. The historian is expected to take a “partial” or “personal stance,” as H. Hattenhauer has put it, and these works are supposed to show a particular pedagogical essence: “More so than anywhere else, history must here be understood as the teacher of the present.”
The concern is therefore not with research methods that are different in principle, but with the result of the historical interpretation and its application to the present. Evidently a treatment of the topic “National Socialism” that avoids a pedagogical application and is coolly detached is felt to be disquieting and perhaps even politically unacceptable. Behind this lies the emotional pressure and the political desire that a regime like that of the Nazis should never repeat itself. Essentially this is all about the objectivity of historical description, about the hoped-for effect of political education. Hattenhauer therefore speaks pejoratively of “supposed objectivity and impartiality,” which, he fears, could render the overall picture “too conciliatory.”
What seems to motivate him in all this is a concern for the democratic education of the next generation. And that is why he also demands that the discipline of history be intensely related to the present and express a clear preference for democracy.

This is perhaps the most popular demand that is made of history: it should prove its social utility, it should take its obligation of “political pedagogy” (Th. Mommsen) seriously and convey “lessons” from the past. Those who make this argument often point out that the representatives of the historical science are, after all, also supported by taxpayers’ money. In this sense the Germanist Peter Wapnewski hopes that history will be useful “as the substructure of the present . . . as a chance to understand the present from the past and to surmise the future: if it can be that, history is the most honorable defense against the seduction through sloganlike illusions and penetrating ideologies, against the suggestive force of the terrible promise of salvation.” The writer Hermann
Glaser adds that such an understanding of history “would be particularly welcome at this time.”
An almost universal popular opinion demands not only that the present take its orientation from the past, but also that history take its orientation from the present: “The only way to do history meaningfully is to analyze it in order to learn from it for taking action today.”
Even historians themselves for the most part agree, often tacitly, that the discipline of history, by throwing light on the past, should also illuminate the present. We are told that historians of the modern period, in particular, must not dodge “the obligation to find an explanation and to prevent a repetition of what has happened, an obligation which National Socialism has imposed on the German people before the entire world.”

In the honorable quarrel over the function of history—from Cicero’s phrase “historia magistra vitae” to Nietzsche’s reflections “On the Advantages and Disadvantages of History for Life” to Jean Jaurès’s call to take from history not only the ashes but also the fire—this argument amounts to a revival of the pedagogically inspired position of Enlightenment historiography. Ranke’s demand that events “should be recounted for the most objective possible examination with no regard for the likes or dislikes of the day,” which stands at the beginning of modern historiography, was formulated at the time as an antithesis to this Enlightenment position.

Current opinion, however, seeks neither to worship an unbroken Enlightenment optimism, “to teach the world for the benefit of future years,” nor to identify with Ranke’s naive confidence that it is indeed possible to show “how it actually was.” The philosophical foundation of German post-Kantian idealism, which forms the basis also of the Marxist variations on the philosophy of history, no longer holds up. Of course, that is recognized more clearly outside Germany. At the same time Ranke’s ideal of objectivity, in spite of being reformulated by Max Weber’s “freedom from values,” has been frequently attacked, in part “unmasked” as a bourgeois front for concrete interests, in part smiled at as mistaken by those who are sure of their mission and subjectivity. Most scholars, however, seek to combine “objectivity,” on the one hand, with “usefulness for the present,” on the other. There is a desire to recognize and utilize, in the words of Jürgen Habermas, the “historian’s interests in understanding action-guiding self-conception”
without letting history become the servant of predetermined political understanding. There is a desire not to be on the sidelines in the debates of the day, to guide present action as an expert on the past, or even—in a version of secularized priesthood—to impart “orientation” to those who, in the historian’s opinion, lack it. However,
and this is the critical point, the conveyance of this “action-guiding self-conception” is to be given an aura of “objective scholarship.” In this way the lessons of history lose their character as the historian’s personal opinion and move into the realm of scholarly truth.

Some historians, in contrast, continue to hold to the separation of subject and object, and deny that it is possible to derive “ought” from past “is.”
From this follows a rejection of the notion that the writing of history should be duty-bound by the present, even if the desire to do so springs from the best intentions of political pedagogy. Historians who take this position have, in a sense, lowered their expectations to the outside world; at most they promise that their discipline could prepare and support normative statements and strengthen their plausibility. Arguments that history should provide orientation for action find their “rational core” (D. Simon) in this reduced formulation, and to that extent a discussion about the pedagogical purpose of the study of history also seems meaningful. However, as long as historical scholarship does not violate its methodological principle that the blending of descriptive and prescriptive statements is unacceptable, one must not expect it to provide obligatory and binding lessons.

The price that exponents of this position pay is this: they cannot insist on their social utility as emphatically as can the majority of their colleagues. Moreover, they cannot participate in the politics of the day by assuming the superior air of the scholar; instead, they must use the usual methods of persuasion that are available to every citizen.

Legal historians who share this position, and I count myself among them, thus do not study Nazi law because of the positive results it may have for current law or the younger generation. They do not want to discover “the idea of law in history” or commit themselves from the outset to the “necessity” of historical processes of development, nor are they interested in contributing anything to the theory of current law, no matter how useful a side effect this may be. Precisely the act of breaking the link between legal history and the philosophy of current law has led to new findings, in the sense of a greater approximation to individual historical reality, for “a text of legal revelation cannot at the same time be the object of historical understanding.”
The goal of a legal history emancipated from the claims of current law and politics is therefore to offer the most comprehensive, nondogmatic, and impartial illumination possible of normative historical structures.

BOOK: The Law Under the Swastika
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