The Law Under the Swastika (5 page)

Both during the period of the seizure of power and during the war, interpreting the older law under the guidance of National Socialist ideology proved a superior approach than legislating new law. It was faster and more flexible, and in individual cases it could be more easily criticized and invalidated.
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The regime evidently accepted the fact that the vague nature of “National Socialist ideology” in turn created some maneuvering room, which was used in various ways. Actual laws, by contrast, had to be measured against National Socialism’s own claims. They also developed a certain binding effect that was bothersome to the new rulers.

Thus the move of turning the legal system into an instrument serving the goals set by the leadership ran on two tracks. Alongside hectic legislative activity that pushed “prerogative laws” increasingly into the foreground, it was above all “unrestrained interpretation,” to use B. Rüthers’s phrase, that changed the previous state of the law. The National Socialists, too, realized that it was to their advantage initially to take over the older legal system “en bloc, in order to wrench it out of the framework of the
Rechtsstaat
through decreed maxims of interpretation and general clauses.”
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Disregard of original legislative intent by ideologically guided judges became far more significant in the everyday legal life of National Socialism than injustice directly commanded by the lawmaker. And that is why the thesis disseminated in the 1950s—that the judiciary, because of its positivist orientation, had been helpless in the face of a legislator liberated from all constraints—contained only part of the truth, and why as a sweeping explanation it is downright misleading.
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Already during the Weimar Republic, wide segments of the judiciary had chosen to oppose the democratically legitimized legislative body.
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That is why the Nazis’ call to “overcome narrow normatism” through legal interpretation—using the slogans “concrete thinking about order and organization,” “will of the Führer,” “needs of the
Volk
community,” “common weal,” “loyalty and faith,” “immorality,” or “healthy popular sentiment”—no longer posed any problems of method.

Little research has yet been done on the degree to which such an “ethnic-national natural law” was translated into practice, the affinity of various branches of the judiciary for taking this step or their relative immunity to it, and the tension between rhetorical effort and practical results (and here one can also find many highly praiseworthy cases of quiet and courageous resistance). And even though we now know much more about judicial policy on a ministerial level—thanks, above all, to Lothar Gruchmann’s monumental study—it is on the whole still true, as Dieter Simon wrote two decades ago, that “we don’t
even have the basic outlines of a critical legal history of the Third Reich.”
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The constitutional “coordination” of the states turned all existing
administration
into Reich administration. In 1939 the remnants of autonomous decisionmaking that the German Municipal Statute
(Deutsche Gemeindeordnung)
of January 30, 1935, had preserved for the municipalities were done away with.
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However, federalism and the decentralization of administration returned in the rivalries of the Gauleiter and in the constant friction between the state and the party.
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The overall picture is still unclear, since a good deal of source material has been lost and the material that still exists has been little studied. How local administrative practice developed, where the safeguards of a
Rechtsstaat
were preserved, and where the party’s will abolished them: these are questions we can answer only for geographically and functionally circumscribed areas.
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Administrative law
under National Socialism was characterized by the following developments: the end of the distinction developed by the
Rechtsstaat
between law, regulation, and individual act; the functional transformation of the norm from a barrier to administrative action to the given goal; the displacement of the notion of legality, now vilified as “liberal” or “positivist,” by a material and ideologically charged concept of “rightfulness”;
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the curtailing of judicial review of “acts of political leadership” and discretionary political decisions; the elimination of personal right in public law and its replacement by the obligation of duty that was open to every kind of intervention and manipulation; the use of the notion of the common weal to abolish normative barriers and adapt the older administrative law to the “necessities of state.”

The fate of
administrative jurisdiction
was closely tied to these dogmatic shifts. The administrative courts remained intact until after the beginning of the war. However, since they were considered “reactionary,” in the sense of being part of the
Rechtsstaat
, they were progressively displaced from supervising administrative conduct.
⁶⁵
This development began when the political police was exempted from supervision by the administrative courts (§ 7 of the Prussian Gestapo law of February 10, 1936, merely affirmed court decisions after 1933) and culminated when the competence of the courts was decisively curtailed during the war. The establishment of a Reich Administrative Court on April 4, 1941, by a decree of the Führer made no difference to the eventual irrelevance of administrative jurisdiction.
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While the administration of justice differed a good deal among the various courts, the more important Higher Courts (the Oberverwaltungsgericht [Higher
Administrative Court] of Prussia, Saxony, and Thuringia, and the Verwaltungsgerichtshof [Higher Administrative Court] of Baden, Württemberg, and Bavaria) were able to preserve most of the constitutional foundations in the traditional areas of special administrative law (building law, trade and employment law, road law, energy and water law).
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5. In
civil law
, which largely retained its normative core, the balance shifted primarily through the administration of justice and jurisprudence.
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The general clauses (paras. 138, 157, 226, and 826 of the Civil Code), against which the Nazis had warned,
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were now recommended as “entry points” for National Socialist ideology. Emphasis on “communal thinking,” the scaling back of rights in favor of duties,
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the infusion of morality into the law, and its vulgarization: all this led to the loss of doctrinal rationality and legal certainty, as well as to the formation of new doctrinal forms. From 1937 on the Nazis talked about dismantling the Civil Code into individual laws and abolishing the general section (Reich Justice Ministry), and after 1939 they discussed the creation of a
Volksgesetzbuch
(people’s law code), which reached the stage of a draft.
⁷¹

Marriage law, family law
, and
hereditary health law
underwent a special development that was, once again, driven by the legislator. The National Socialist state established its “public interest” in the policy of procreation through changes in the law of adoption, in the procedure of contesting legitimacy, in government loans to young married couples, and in child support. It pursued this further through the Law for the Prevention of Genetically Diseased Offspring of July 14, 1933; the so-called Blood Protection Law of September 15, 1935, forbidding marriage and sexual relations between Jews and non-Jews on the grounds that this constituted “racial pollution,” outlawing the employment of non-Jewish domestic help by Jews, and barring Jews from flying the national colors; and the Marriage Law of July 27, 1938.
⁷²

Continuing an older, though now massively politicized, trend,
labor law
also drifted further away from the Civil Code. Following the breakup of the unions, the establishment of the German Labor Front, and the abolition of collective bargaining (replaced by “trustees of labor”), labor law was given a legal framework in the Law on the Organization of National Labor, promulgated on January 20, 1934, and modeled after the Italian
Carta del lavoro
. This law was flanked by the Law on Homeworking (Heimarbeitsgesetz, 1934), the Law on State Labor Service (Reichsarbeitsdienstgesetz, 1935), the Labor Organization (Arbeitsordnung, 1934/1938), and the Law for the Protection of Young People (Jugendschutzgesetz, 1938). Orienting employees and employers toward the “common benefit of the people and the state,” interpreting
the employer-employee relationship as a “communal relationship” infused with ethical meaning,
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outlawing strikes, freezing wages, and abolishing the right to freely choose one’s job during the war: all these steps came de facto at the expense of workers and employees. However, a propagandistic appreciation of workers, “Kraft durch Freude” (strength through joy)
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events, and improved social security benefits compensated somewhat for these losses, at least on the subjective side; together with the overall system of centralized guidance, they prevented the outbreak of domestic unrest.
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6. Parallel to strengthening the position of employers in labor law (the “Führer principle”), the new leadership broadened the powers of management in
business law
. In the area of stock law this led to an increase in the authority of the board
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and the state’s right of intervention. In cartel law, as well, the state’s abilities to intervene and direct developments were broadened.
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The cartel court was abolished in 1938, and the cartels gradually turned into self-administering organs of the war economy working closely with the state.
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In addition, the state took over the setting of price policy, at first gradually and then decisively with the outbreak of the war. It regulated foreign currency laws and used the foreign currency criminal laws as a variant of political criminal law (as the German Democratic Republic did later).
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The other areas of business law and war economy law were also safeguarded through special penal laws.
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7.
Social law
, too, was affected by long-term structural changes and ideological influences. Public welfare on the whole was shunted aside as much as possible,
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except for areas that could be used for propaganda and were looked after by the party’s organizations. In 1935 the German Labor Front explained: “Until now, excessive amounts of money from the funds of the social administration and general welfare work have been spent on people who were hopelessly sick and unquestionably inferior.” Accordingly, the Nazis tried to rid themselves of “useless” social welfare recipients through so-called “euthanasia actions” and deportations to concentration camps.

The economic upswing made it possible initially to restore the financial health of social security. By 1939 the number of insurance carriers had been reduced by 2,838 to 4,841. Various improved benefits were granted,
⁸²
the pool of eligible recipients grew,
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and in the area of accident insurance the state switched in 1942 from insuring businesses to insuring persons. However, the picture is complete only if we include the following facts: the destruction of self-government and the introduction of the Führer principle; the partial dismantling of
social benefits; the retention of an increase in contributions during hard times; and the use of the assets of social security to finance the war.
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8.
Tax law
is an exemplary case for what I mentioned above as the ambivalent relationship between the seemingly apolitical, technical nature of an area of the law and its regulation through a superimposed general clause. The first paragraph of the Tax Amending Law of October 16, 1934, prescribed that the norms of tax law be interpreted in accord with “National Socialist ideology” (which was soon taken as the general principle of legal interpretation). This led to great difficulties for organizations the Nazis disliked (Jewish clubs of all kinds, hospitals, old age homes, ecclesiastical foundations, religious orders, and other ideologically colored institutions), most often through the denial of tax-exempt status. In addition, tax evasion was stylized into “treason against the national community.” The decisions handed down by the Reich Fiscal Court
(Reichsfinanzhof)
played an important part in tightening the criteria of what constituted a tax offense and in actively interfering with Jewish clubs and the churches, in particular. This runs counter to a widely disseminated legend that the administration of tax law was purely professional.
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9. From the outset the National Socialists recognized the eminently political function of
criminal law
and acted accordingly. They used criminal law to intimidate opponents and suppress groups, to create fear even among their own supporters, and to create an attachment to the “national community” by criminalizing some visible victims (the so-called “November criminals,” communists, Jews). Moreover, the Nazis had promised peace and order and “a ruthless battle against those who, by their activities, injure the general good” (point 18 of the party program). A “reform program” for criminal law did not exist in 1933, but there was a basic antiliberal and anti-individualistic attitude, which was shared in part by the legal literature on criminal law.
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Beginning with the police raids in the wake of the Reichstag Fire Decree of February 28, 1933, the Nazis erected on these foundations a system of penal control and oppression in which traditional criminal and trial law, gradually reshaped, played an important but not exclusive role. It was flanked by an expansive special criminal law,
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by police law, and by the special powers granted to the party and the SS. A “special law” was in force in the conquered territories of the East, the sole purpose of which was the suppression of any hint of opposition.
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To a large extent the Nazis did without a legal basis for their actions. The jurisdiction of regular and military courts over penal offenses committed by the civilian population was curtailed. Police courts-martial,
SS courts, and executive acts without a legal foundation and based on “the necessities of state prevailing in the incorporated eastern territories” took the place of traditional justice.
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Overall, criminal law and punishment “not only surrounded the dictatorial system with a protective wall by consistently pursuing the racial idea and the related destruction of supposedly inferior person, . . . it also caused incredible bloodshed.”
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Even if the Nazis implemented some points of the reform discussion that had taken place during the Weimar Republic,
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the primary trend was a movement away from the direction of reform initiated by Franz von Liszt and the elimination of the trial guarantees developed after the Enlightenment.