The Law Under the Swastika (6 page)

After 1933 the practice of criminal law and the writing about it were dominated by several developments. A crime was no longer seen as the violation of a legally protected interest but as a breach of duty, while punishment was meted out not to an offense but to a perpetrator’s willingness to commit it. The strict typology of offenses was loosened through the introduction of new concepts that still needed to be fleshed out. The prohibition against the use of analogy was abolished, alternative punishment was permitted,
⁹²
and retroactive force was introduced.
⁹³
The range and severity of punishment was expanded, and the idea of deterrence and protection of the nation took precedence over rehabilitation. The procedural position of the prosecutor was strengthened, and the rights of defending lawyers were curtailed.
⁹⁴
The appeal process was shortened. Special courts were introduced,
⁹⁵
especially the so-called People’s Court
(Volksgerichtshof)
.
⁹⁶
The powers of the police and the Gestapo were broadened. Finally, the principle of legality was formally abrogated.
⁹⁷
The Nazis implemented these changes in part by passing specific laws,
⁹⁸
in part by guiding the interpretation of existing law. Attempts to reform and codify substantive criminal law and trial law went no further than the draft stage, primarily, it would seem, because the leadership wanted to avoid committing itself in any way.

A topic unto itself is the controversial administration of justice by the Wehrmacht. Although no definitive verdict is possible at this time, the picture we get is at odds with the one painted by former military judges.
⁹⁹
In recent years scholars have made major corrections.
¹⁰⁰

10. A survey of developments in the various areas of National Socialist law makes it plain why there can be no real “legal doctrine” (legal philosophy, legal theory) of National Socialism. What prevailed from the whole range of legal philosophy before 1933 was chiefly conservative Hegelianism (J. Binder, K. Larenz, E. R. Huber) and other variants of a neo-idealism that also picked up the threads of Johann
Fichte and Friedrich Schelling. Although “concrete thinking about order and organization” (C. Schmitt), the “jurisprudence of racial laws” (H. Nicolai), and “ethnic-national natural law” (H. H. Dietze) did not progress beyond vague sketches, by elevating brutal reality philosophically they rendered no small service to the system of power.
¹⁰¹

Just as there was no separate “National Socialist history,”
¹⁰²
a genuine “National Socialist legal history” was not able to develop either.
¹⁰³
To be sure, a few legal historians professed their decided loyalty to National Socialism. However, it is more important to note the existence of a broad and very widespread affinity between the basic idealistic foundation of legal scholarship and the best face that National Socialist rule presented. The search for the working of “ideas” in historical material,
¹⁰⁴
the attribution of specific ideas to specific peoples (such as community, honor, and “true” freedom to the Germans, self-interest and “false” freedom to the English, the Jews, and so on), notions about the decay and revival of such ideas, and the quest for the “eternal German spirit” that manifested itself in diverse forms: all this was easy to integrate into the pattern of National Socialist propaganda. Basic ideas of National Socialism and idealism above all set the Germanic branch of legal history on a voluntary or involuntary parallel track with Nazi ideology. After 1945, these interconnections were largely suppressed or denied. The branch of legal history that dealt with Roman law—because of its material, its international connections, and the fact that eminent scholars of the field were forced into emigration—proved much less susceptible to the influence of Nazi ideology.
¹⁰⁵
Point 19 of the NSDAP party program—“We demand that Roman law, which serves a materialist world order, be replaced by German common law”—remained relatively insignificant. At best it reinforced the “crisis” that Paul Koschaker had diagnosed in that field of study.
¹⁰⁶

IV.
If we return, following this cursory overview, to the history of scholarship, we note that the basic methodological problems were not really solved, and in all likelihood could not be solved. The stirring postwar questions, How could it happen? and How can we prevent something similar from happening again? continued to be unsettling because “jurists as such” were—and are—unable to answer them. Once the recommendations of natural law of the postwar period had lost their persuasive force and the modern theory of science had conveyed a basic awareness of methodology, the only thing left was recourse to a value-bound private morality, civic virtues, and democratic consciousness, and an appeal to the legal profession’s sense of
political responsibility.
¹⁰⁷
Ingo Müller’s popularly written book
Furchtbare Juristen
(Terrible jurists: a title borrowed from Rolf Hochhuth) was published in 1987 and became a bestseller.
¹⁰⁸
The simultaneous and unexpected eruption of the so-called
Historikerstreit
(historians’ quarrel)
¹⁰⁹
revealed how much the scholarly landscape had changed. This controversy revolved less around questions of fact than around issues of interpretation and evaluation. The most contentious issue was whether the historicization of the events of the Nazi era—which is no doubt an inevitable process—also entails strategies to relativize them and make them less burdensome. The
Historikerstreit
was essentially a moralistic-semantic debate. At the same time, however, it was also a struggle against the reappearance of nationalistic and apologetic positions. And seven years after the controversy we can say that it was not a struggle against imaginary dangers.

PART ONE

The Study of National Socialist Legal History

ONE
Biases and Value Judgments in the Study of National Socialist Legal History

I.
Debates about scholarly methodology, like historical topics, experience trends and cycles. The intensity of these debates appears to be directly related to the uncertainties within the disciplines in which they are carried on or to the seriousness of challenges from the outside. As for legal history, it may indeed be true that such debates “have not played a significant role since the program of the historical school.”
¹
Still, they do fluctuate with the current of the times. For instance, the curriculum regulations of 1935, which threatened the position of Roman law, prompted broader methodological reflections,
²
and the end of the Nazi era—though not its beginning—led to several years of new methodological debates.

The postwar period was a time of deep insecurity and confusion. Historians and legal historians saw not only their methods but also the meaning of their work thrown into doubt. Faced with the “German catastrophe,” Friedrich Meinecke brooded on the meaning of historical work beyond the “desacralized causal connection [
entgötterter Kausalzusammenhang
].
³
Gerhard Dulckeit searched for the working of supra-temporal ideas in legal history,
⁴
and Heinrich Mitteis sought to demonstrate why “legal history was worth having.”
⁵
Confronted with the abuse that idealism had suffered at the hand of Nazi propaganda, these scholars were trying to salvage their own methodology, which was based on idealism. They were trying to rebuild a humane image of man and were searching for an “idea of the law” in history that was “indestructible” in the face of all catastrophes.
⁶
As Mitteis said, “We invite legal history to appear before the forum of life, and ask it to prove that the fruits of its work can be directly translated into present values.”
⁷

Scholars pursued these goals on the basis of a more or less clearly formulated idealism and unbroken optimism about values, and they
used a language that was only in part amenable to rational examination. In retrospect this may seem peculiar, as we might expect that the more obvious path would have been a return to the positions of Max Weber and of Viennese neo-positivism, an embrace of Western political thought and Anglo-Saxon analytical philosophy combined with a rejection of the traditions of German idealism. But such an expectation would amount to a complete misunderstanding of the intellectual situation of the postwar period.
⁸
Again and again one discovers that “in spite of catastrophes, rubble, and deepest degradation, the metaphors of late-idealistic ways of thinking continued unbroken. The longing for the ‘good, beautiful, and true’ had by no means died down; it was now given a defiant undertone of ‘nevertheless.’ The German spirit had been abused and dishonored, but not destroyed. People clung to the immortality of the classics.”
⁹

The methodological reflections of the first years after the war—in which, apart from Mitteis, Karl Siegfried Bader, Helmut Coing, Paul Koschaker, Hans Thieme, Theodor Viehweg, and Franz Wieacker were significantly involved
¹⁰
—soon subsided, once scholars, shaking off Nazi terminology,
¹¹
had confirmed that the traditional methodological maxims were fundamentally sound. Only Wieacker remained restless, and he has continued to develop and change his position right down to the present.
¹²
The discipline of legal history as a whole—if I may speak in such broad terms—essentially continued as Mitteis had described: “With ever renewed joy of discovery it moved from one field of inquiry to the next, piling up its material into mountains of dizzying height and interpreting its sources thoroughly—though mostly in an unreflected manner—from the standpoint of a naive realism.”
¹³
In all of this, one is tempted to add, the classificatory categories were derived from idealistic philosophy, especially of a Hegelian variety.

As a result, legal history was badly prepared for the methodological discussion that was carried on in all humanistic disciplines in the wake of the student movement of the late 1960s. The sudden calls for an “emancipatory legal history”
¹⁴
and a “materialist method,”
¹⁵
and the goal “of restoring in this field, as well, the necessary historical orientation of action through a materialist theory of history”
¹⁶
met with indignant opposition.

Legal historians could respond to these demands by maintaining that the best work in legal history had always used an approach that was now being called “materialist”—that is, it had included the social and economic conditions underlying the creation of legal norms. They could also argue that the “orientation toward action” (
Handlungsorientierung
)
that was being called for was nothing other than a new metaphysics of history. Replacing Hegel with Marx was
not
progress in terms of theory but the continued adherence to nineteenth-century categories of thinking.

Since that time, the question about the methods of legal history has advanced very little outside of Wieacker’s studies.
¹⁷
The
Zeitschrift der Savigny-Stiftung für Rechtsgeschichte
, the leading journal in the field, has avoided methodological problems as studiously as it has avoided an examination of National Socialism and contemporary legal history. The
Zeitschrift für neuere Rechtsgeschichte
, which has been filling these gaps, began publication in 1979.
¹⁸

II.
Given this situation, remarks on the topic under discussion can only be preliminary and fragmentary. They are by no means intended to retrace the methodological debate from Leopold von Ranke and Johann Gustav Droysen up to the present by using National Socialism as an example. Rather, I will offer some observations drawn from my own legal scholarship. The point I will make is that a few special characteristics distinguish the literature on legal history under National Socialism as it has developed in the Federal Republic after 1945 from the rest of legal history.

1. Looking at the authors themselves, we note that a comparatively high percentage are former judges and administrative officials. Legal scholarship on topics ranging from antiquity to the nineteenth century has become fully professional—that is to say, it is pursued by scholars at universities, at non-university institutes, or in archives. By contrast, when it comes to the legal history of National Socialism, the debate has been joined by jurists and nonjurists who cannot be described as legal historians in the conventional sense. On the one hand, this enriches the debate, as it reduces scholarly isolation and can lead to fruitful contact with neighboring disciplines. On the other hand, there is greater danger of amateurism and subjectivity, since there is no guarantee that the sources will be selected and interpreted critically. In this way the boundary between analysis and self-portrayal becomes blurred, especially when the author is someone who worked in some capacity in the judicial apparatus of the Nazi state. Examples are the books of the former judges H. Schorn, H. Weinkauff, and O. P. Schweling.
¹⁹

The study by Schweling,
Die deutsche Militärjustiz, in der Zeit des Nationalsozialismus
(German military justice in the era of National Socialism [Marburg, 1977]), has become a virtually paradigmatic example of the dangers I have mentioned. The author himself had been a judge in the Air Force, and he was supported by the Vereinigung ehemaliger
Heeresrichter (Association of Former Military Judges) in gathering and selecting his material. The controversy between the author and the Munich Institute for Contemporary History over the publication of the manuscript—as well as the discussion about the value of the work, following its publication by Erich Schwinge after the author’s death—revealed that some significant lines of battle had been drawn up: The Institute for Contemporary History, whose scholarly advisory board had recommended against publication, was opposed by former military judges and others who had been personally involved in the events, backed by articles in
Deutsche National-Zeitung
(a right-wing paper) and
Deutsche Wochenzeitung
(mouthpiece of the Nationaldemokratische Partei Deutschlands [NPD], a right-wing party).
²⁰
This is not the place to analyze the positions that were staked out. However, the facts I have given already reveal how difficult it is for a consensus on the scholarly merit of a work to emerge if its author and his supporters are not professional historians, if they give free rein to their emotions and their overpowering interest in having the findings turn out a certain way, and if they are unable to see criticism of their method as anything but the result of political bias.