Dark Continent: Europe's Twentieth Century (7 page)

The new radical Right, in contrast, rose to power in Italy and Germany through elections and the parliamentary process. Its instrument was the party, which gave it a legitimacy and a power in an era of universal suffrage that allowed it to outflank and weaken old-fashioned conservatives, less used to the new game of mass politics. When Hitler insisted to Chancellor Brüning that “the fundamental thesis of democracy runs: ‘All power issues from the People,’ ” he was speaking as the leader of a major vote-winning party. Catch-all movements like the NSDAP (the National Socialist German Workers’ Party) were the real successors to the populist impulses of the 1920s, since they recognized the tremendous power embodied in the popular demand for representative government. The very real tension between old and new Right could be detected most obviously in countries like Austria, Hungary and Romania where, in the 1930s, murderous political conflicts erupted between conservatives and radical nationalists.
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Of course, this new Right, despite its use of the mass party as its vehicle to power, insisted that it was not continuing the parliamentary game, and proffered alternatives to parliamentarism to satisfy the post-1918 demand for unifying forms of participatory politics. First and most lavishly praised, Mussolini’s corporatist state evolved amid much fanfare and international interest in the 1920s. Italian corporatism was publicized as a typically fascist means of organizing the representation of society through associations of producers rather than classes. “The Corporate State is to Mussolini what the New Deal is to Roosevelt,” declared
Fortune
magazine in 1934.

In reality, corporatism was a sham, disguising Fascism’s taming of the workers and its collaboration with the managerial elite. But its appeal stemmed from the fact that it seemed to point the way to a less
divisive and more organic form of political representation. Even its hierarchical character seemed proof to some of its essential modernity. “Italy shows us,” wrote one student of Fascist policy in the 1930s, “that this central authority can itself be a direct emanation of the existing national syndical structure—a freely chosen elite which, inspired by new ideals of social right and social justice, is ready and able to limit, through its dependent organizations, the freedom of the one in the interests of the many.”
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Similar schemes were adopted elsewhere. In 1933, António Salazar introduced a new Portuguese constitution which declared the country a corporative and unitary republic. Individual rights were overridden by the power bestowed upon the government to limit them “for the common good.” A vestige of parliament survived—as in Nazi Germany—but political parties were banned, and the Prime Minister ruled by decree-law. The Upper House became a Corporative Chamber, and industrial relations were forcibly remodelled along the lines of Catholic organic thought through the National Labour Statute, which outlawed strikes and lockouts, destroyed independent unions and led to the creation of national guilds. In this way, class warfare and capitalist conflict were—at least in theory—replaced by harmony and cooperation. As in Italy, however, the theory turned out to be one-sided—Catholics’ fear of communism usually moderated their hostility towards capitalists—and businessmen retained much of their autonomy.
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In depression-torn Austria, Hans Kelsen’s democratic constitution had been regarded with suspicion by the Austro-Marxists, hostility by the Grossdeutsch Volkspartei (pro-German national liberals), and unenthusiasm by the Christian Socials, who were more interested in their own Catholic corporatism. Chancellor Dollfuss resolved the tension between Marxist Vienna and the Catholic provinces first by suspending parliamentary government (on 4 March 1933, eight days before Hitler followed suit in Germany) and then, the following year, by ordering a military attack upon the great socialist housing estates in the capital. With the destruction of Red Vienna—a further tremendous blow to the Left in Europe—came Dollfuss’s creation of a Catholic authoritarian regime, which replaced liberalism and democracy with the doctrine of a “Christian-German corporate state.”
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Austria thus followed Portugal in pioneering the kind of self-consciously Christian nationalism which would later permeate Slovakia, Spain, Greece, Croatia and Vichy France, as well as right-wing politics in Poland, Hungary and Romania. Violent anti-Semitism was the corollary. When the philosopher Moritz Schlick was murdered by a deranged student inside the hall of the University of Vienna itself, a Catholic-nationalist newspaper responded:

We would like to remind everyone that we are Christians living in a Christian-German state and that it is we who decide which philosophy is good and suitable. The Jews should be allowed their Jewish philosophy in their own Jewish cultural institute! But in the chairs of philosophy in the Viennese university in Christian-German Austria, there belong Christian philosophers! Recently it has been repeatedly explained that a peaceful solution of the Jewish question in Austria is also in the interest of the Jews, for otherwise a violent solution is unavoidable. Hopefully, the terrible murder in the Viennese university will serve to bring about a truly satisfactory solution of the Jewish question!
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The fact that Schlick was not Jewish himself was evidently less important than that he was associated with “Jewish” movements in contemporary philosophy! Well before the Nazis marched in, therefore, Austrofascism was pursuing the goal of a
Judenrein
community. The 1938 Anschluss may have destroyed Austrian independence, but hardly democracy, since that had already collapsed.

Yet for all the similarities between Austrofascism and National Socialism, there were differences. Austrofascism, under Dollfuss and later Schuschnigg’s leadership, aimed at a Catholic authoritarianism. It was no less hostile to democracy and parliaments than was Nazism, but it accepted the Church’s leading role in society. As a result a split developed between the regime’s supporters and the proponents of racialism—a split which needs to be taken seriously in a climate where, increasingly, the Left’s power was on the wane and the major tensions were within the Right itself.

Inter-war Austrian conservative thinkers, who combined German nationalism and Catholicism, always remained ambiguous about
whether the doctrine of the corporate state was a universal creed, or designed solely for Catholic Germans. National Socialism was, by contrast, anti-religious and explicitly nationalist. “National Socialism opposes the dogma of the international universalistic science of liberalism, according to which all human beings are the same, with the knowledge of racial difference,” stated an Austrian philosopher, Ferdinand Weinhandl, in 1940.
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Of all the right-wing assaults on parliamentary liberalism, therefore, National Socialism was the most extreme, the most uncompromising: if parliaments were no longer the site of legitimacy, neither was the Church, still less the monarchy. Here was where the difference lay between Dollfuss’s Austria, Franco’s Spain and Antonescu’s Romania, all of which acknowledged and coexisted with traditional bases of authority, and the Third Reich. One kind of Right defended the old order against the forces of mass politics; the other used those forces in a revolutionary attempt to reshape society itself. Even Fascist Italy allowed King and Church to reside alongside the regime. In Nazi Germany, however, legitimacy lay solely in the popular will, as manifested in the decrees of the Führer.
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LAW AND THE NATIONAL SOCIALIST STATE

If the liberal European constitutions of the 1920s aimed to subordinate politics to the rule of law, for Hitler, by contrast, law was subordinated to politics. Yet the Third Reich was certainly not a lawless state. On the contrary, the Nazi regime insisted that it was defending law and order against the forces of anarchy, and this claim was vital to its popularity and self-image. Over four thousand statutes, decrees and ordinances were issued in the first three years of the Third Reich in the official law bulletin of the Reich alone. Hitler himself—having murdered his colleague Ernst Röhm in the Night of the Long Knives in 1934—then issued a retroactive decree which stipulated that “the measures taken on June 30, July 1 and 2, in order to suppress treasonable attacks, are declared legal.” There was law aplenty in the Third Reich; but it operated in a quite different relation to politics than in the democracies.
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The German legal tradition had always been highly conservative.
Positivism, the autocratic nature of Wilhelmine administration, and the career structure of the judiciary all led judges to see the law as an instrument for the protection of the state rather than the individual. During Weimar their conservative and nationalist sympathies were revealed in their lenient treatment of the extreme Right. After 1933, they adapted to the new situation, comforting themselves with the view that National Socialism was a legal continuation of the preceding regimes. However, it quickly became apparent that behind the veneer of legality, the regime itself harboured revolutionary aspirations.
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For a start, Nazis explicitly repudiated the values of liberal jurisprudence, as represented by the Weimar constitution. A Hamburg court stated, for example, that “the destruction of this constitution has been one of the outstanding goals of National-Socialism for many years” since its “degenerate form of bourgeois constitutionalism” was repellent to the “German world view.” Rather than drawing up a new constitution as the Bolsheviks did, Nazi justice was based on the Führerprinzip—the view that it must reflect Hitler’s will, serving as an instrument of the regime’s goal of building up a “healthy racial community.” The Führerprinzip subordinated “formal legal criteria” to arbitrary measures validated by Hitler’s authority. “Protection of the
Volksgemeinschaft
” meant that the law no longer protected the rights of Jews and gypsies, as well as “degenerate” classes of Aryans: asocials, homosexuals, the physically and mentally handicapped and others. Police repression and medical violence increased in intensity and replaced the therapeutic schemes of the Weimar welfare state. The notorious Roland Freisler emphasized that “fundamental rights which create free spheres for individuals untouchable by the state are irreconcilable with the totalitarian principle of the new state.”
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For those judges who were conservative nationalists rather than Nazis, the implications of such statements were troubling. They clung to the fiction of a “National Socialist constitutional order” or argued vainly that the suspension of the Weimar constitution was only temporary. In the first years of the regime, the courts tried to preserve the idea of due process against the depredations of the Gestapo. How, for example, could business operate without some consistency in the application of the law? Max Weber had argued that
a rational legal system was necessary for the smooth functioning of a capitalistic economy. In fact the Nazi experience did not disprove his contention: vast areas of private and commercial law were left largely untouched, with the obvious proviso that German Jews were rapidly excluded from their provisions.

But in general radical National Socialism overwhelmed the judges’ natural desire for consistency and independence. From the legal point of view, Germany had become a “dual state,” in which an endless stream of arbitrary decrees issued by the political leadership eroded the customary body of law. Restraints on police power were abolished, and the Gestapo often seized people who had been acquitted by the courts and sent them straight to concentration camps. Some judges were outraged at this behaviour, not least because it damaged the dignity of the court; they negotiated a series of arrangements with the Gestapo, whom they agreed to notify when acquittals seemed likely. In return, the Gestapo agreed to carry out their arrest of acquitted defendants more discreetly.
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Often, lawyers actually anticipated the wishes of the political leadership. For over a year before “racially mixed” marriages were banned by the Nuremberg “Law for the Protection of German Blood and German Honour,” many judges and other civil servants refused to perform marriage ceremonies in which one of the partners was Jewish. In January 1934 Reich Interior Minister Frick was forced to remind officials of the rules then in existence, ordering them to carry out ceremonies according to the laws then in force even where they “perhaps appear not to conform fully to National Socialist views.”
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The Nazi view, however, was that “healthy race sentiment” should override “formal legal criteria.” According to a judge at the Berlin
Landgericht
, “the view that every single act against Jews must be ordered by the government individually is not correct. If this were the case, it would not be permissible to interpret the law to the disadvantage of the Jews and the Jews would enjoy the protection of the law. It is obvious that this makes no sense.”
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The superseding of liberalism in pursuit of a healthy racial community was evident not only in the dominance of ideology over legal
precedent, but also in the extension of politics into all areas of life. Nazi law—even more than that of the Fascist state before it—revealed the new power demanded over every individual by the totalitarian state, with what Hitler himself termed its “comprehensive claim to power, destroying all liberal forms of autonomy.” The old bourgeois distinction between public and private was challenged by the insistence that “in the struggle for self-preservation which the German people are waging there are no longer any aspects of life which are non-political.” One Nazi jurist argued that “the so-called ‘private sphere’ is only relatively private; it is at the same time potentially political.”
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