Jewish Life in Nazi Germany: Dilemmas and Responses (14 page)

An applicant had the best chance whenever he or she found a strong ally in one of the German agencies involved, even if—and especially when—their reasons for embracing the cause of the claimant were entirely selfish. An exceptional case in the Berlin archive exemplifies this strange interaction within an already strange legal framework. In February 1942, the certified genealogist (
Sippenforscher
) karl Unger approached the Berlin prosecutor on behalf of his client, ernst k., a middle-ranking civil servant, with the request to open a paternity case against his former Jewish wife, 45-year-old Hanna k., “in the interest of his two children.” Both parents of his former wife as well as her alleged biological father were already dead; the application lost further in credibility as a result of Unger’s claim that Hanna k.’s mother had been sexually abstinent vis-à-vis her Jewish husband while having an affair with an “Aryan” man. As the “expert” opinion by Dr. Dubitscher of the Poliklinik für erb-und Rassenpflege (Polyclinic for Hereditary and Race Care)—one of the busiest court-approved institutes in Berlin— merely stated that paternity from both fathers was equally likely, the case seemed stillborn. Yet, ernst k. did not give in and solicited an ex-pert psychological opinion on his former wife’s “mental characteristics” (
seelische Eigenschaften
).
⁵²

In early March 1943, Professor Dr. Matthias H. Göring’s Deutsches Institut (since early 1944, Reichsinstitut) für Forschung und Psychotherapie (German/Reich Institute for Research and Psychotherapy) in Berlin presented a twenty-page case analysis (
charakterologisches Gutachten
) based on comparative graphological, literary, and physiog-nomic analysis in combination with interrogations of Hanna k. The result deviated as drastically from the earlier expert opinion by Dubitscher’s institute as it mirrored the randomness of racial categories and the prevalence of anti-Semitic stereotypes. k.’s Jewish father-of-re-cord was described as a “serious and established man strongly bound in Jewish tradition and thus mentally confined” with a “penetrating mind in typically Jewish manifestation,” while devoid of any “open-minded and relaxed life-affirming spontaneity” (
aufgeschlossener und gelöster Lebensunmittelbarkeit
)—all of which represented “characteristics of Jewishness in a somewhat ‘old-testamentarian’ form” (
Grundzüge jüdischer Wesensart von einer gewissen ‘alttestamentarischen’ Ausprägung
). Compare this to the ruling by Göring’s institute on the “Aryan” lover of Hanna k.’s mother: “Affable personality” combined with “a happy mind, humane attitude and developed love of nature,” in addition to his most prominent features of “Prussian patriotism and national consciousness,” were clearly a result of his “Nordic type.” In terms of paternity, the psychologists had no doubt about the high, almost certain likelihood that the “Aryan” man, and not the Jewish husband of k.’s mother, was the biological father.
⁵³

This case is rare not only due to the involvement of psychological expertise in the legal process, but also in regard to the remarkable and, for the applicant, positive momentum it gathered in the course of inter-necine rivalry, as well as the insight it provides behind the façade of the scientific Potemkin village. Trying to avoid a clash of related approach-es, Dr. Dubitscher, himself a psychiatrist, had positive things to say on the meticulousness of the rival “expert” opinion. Yet he stuck to his conclusion and pointed to the relative novelty of psychological analysis that could be used as evidence only “with great reservation” (
mit großer Zurückhaltung
).
⁵⁴
Coming from a racial scientist who habitually provided hazy conclusions himself, this argument seems hardly convincing; nevertheless, Staatsanwalt Horn bought into it in his rejection of k.’s appeal to open the case. However, neither kinship researcher Unger nor Göring’s institute gave in; instead, they solicited a decisive racial-biological opinion by a leading expert, Professor Verschuer. while k. had the welfare of his children, perhaps also that of his former wife, in mind, Göring was aware of the precedence inherent in “a general decision on the evidence-value of scientifically sound psychological expert opinions,” and of the tempting prospect of being involved, particularly during the war, in legal work.
⁵⁵

As it turned out, Göring could regard Verschuer’s assessment that came down in July 1944 as confirmation. while the application of expert psychological opinions for the purpose of establishing paternity had to be restricted to special cases and handled with special care, Verschuer attested to the professional nature of the work Göring’s institute had conducted. Dubitscher’s Polyclinic, on the other hand, fared less well. It had been sloppy in its investigation and analysis to the extent that the conclusion that Hanna k. bore “characteristically Jew-ish traits” and no similarity to her mother’s “Aryan” lover appeared “most certainly wrong.”
⁵⁶
In the struggle between the scientists, the judiciary backed the one with the greatest prestige. on 11 September 1944, Horn applied to the Landgericht (state court) to bring charges based on the validity of the psychological expertise and asked for Gestapo agreement to proceed with the case. In its verdict passed in early November, the court ruled in favor of the applicant, presumably saving Hanna k. and her children from further persecution as objects of German
Judenpolitik
.
⁵⁷

Insights and Open Questions

In administering the family law novella as part of a racial policy, the state could not lose: it would either weed out a member of an undesirable out-group, or gain an “Aryan” for the
Volksgemeinschaft
(racial community). Cases that seemed too weak, that is to say, claims by those whose Jewish ancestry seemed obvious or in which applicants could not produce sufficient evidence, were turned down by the prosecutor and never made it to court. Successful claimants knew they could beat the system only if they were lucky; yet luck was not enough. Claimants depended on the support of their parents, especially those who relinquished their Jewish identity by claiming to be “Aryan,” and thus reaffirming the crucial importance of family bonds even in situations where their mothers or fathers were facing deportation. Like Luise w., many women dared to get involved with the German justice system and agreed to a dangerous and degrading procedure not for their own sake, but for that of their children and grandchildren. Their motives are but dimly reflected in the surviving prosecutor files with their formalistic language; yet it is clear that claimants and their supporters hoped to cut through the close-knit web of persecution by wielding the double-edged Nazi family law against the intentions of its originators, administrators, and executors.

If one wants to apply a descriptive label to the kind of Jewish behavior exemplified by the Berlin prosecutorial cases, it could be called “evasion by compliance.” The applicants used the existing system to undermine the basis of the “final solution,” the definition of who was a Jew, and turned Nazi racial policy on its head. By posing as members of the in-group, they defied “social death” as well as their physical annihilation. As a result of the family law novella’s prime purpose as a mainstay, and not a loophole in the structure of persecution, this form of evasion was not possible for the majority of Jews in Germany and in German-dominated western europe, and clearly out of the question in eastern europe where Germans cared little about keeping up the appearance of legality and clear-cut definitions. Yet, denying the stigma of being labeled as a member of the out-group forms part of the spectrum of Jewish behavior during the Third Reich—a spectrum much broader than commonly acknowledged.

In assessing the historical importance of this kind of evasion, one should not forget that it worked only as long as those administering German
Judenpolitik
did not perceive it as a threat to the system of persecution—a caveat that applies also to other forms of Jewish reactions within the limits of what was deemed legal at the time. Further studies are necessary to clarify how far these specific contingencies add up to form a consistent pattern beyond the individual case. who pursued the legal route toward racial reclassification, what background— socially, economically, and in terms of orientation—did these people have? How important were access to money, privileged information or to non-Jews with “connections”? were lower-class or otherwise under-privileged Jews less inhibited than their bourgeois brethren in reveal-ing intimate details about themselves and their family history to state functionaries and racial experts? what other means were applied by them at the same time, earlier, or later? Did those who pursued the legal path first end up further down the road of potentially life-saving, but even more risky clandestine or illegal action, such as going into hiding? while offering a flat, selective, and, to some extent, distorted picture of the applicants and their relatives, the case files of the Berlin prosecutor’s office provide a basis for further research. Combined with other wartime and postwar sources, they have the potential to broaden our so far remarkably limited understanding of the full range of Jewish responses to Nazi persecution.

From looking at the persecutors, in this case the authors and administrators of the family law novella of 1938, it is clear that despite a multitude of publications on German
Judenpolitik
during the Third Reich, its mechanisms to determine who belonged to the in-group and who had to be treated as a Jew require more in-depth study. Functionaries of the racial state could easily interpret the family law novella as a tool that had more potential for doing harm by infiltrating the
Volksgemeinschaft
with persons of Jewish ancestry than strengthening it. The practical ambiguity of the law worked both ways: after the war, state jurists pointed to successful cases in which “upgraded” Jews or
Mischlinge
escaped annihilation in order to bolster the claim that Ger-man courts had contributed decisively to the “containment of Nazi racial politics” (
eindeutigen Beitrag der Justiz zur Einengung nationalsozialistischer Rassenpolitik
) and “most generously used the principle
‘ in
dubio pro reo
’ (
von dem Grundsatz ‘ in dubio pro reo’ in weitherzigster Weise Gebrauch gemacht haben
).”
⁵⁸
At the same time, survivors in a way “re-privatized” what had been dragged into the spotlight of Nazi courts and interpreted the family law novella as an important means of their rescue and survival. Similarly, the few historians who have dealt with the subject come to more positive conclusions than the ones presented here.
⁵⁹
Irrespective of current interpretations, within the overall history of the Holocaust, the reaction of Jewish victims calls for more in-depth research before we can properly understand its aspects in all of their complexity and nuance.

Notes

1. This chapter addresses one of the conceptual issues that have come up in the course of the source edition project on “Jewish Responses to Persecution, 1933–1946,” conducted by the Center for Advanced Holocaust Studies at the United States Holocaust Memorial Museum (USHMM), especially volume 1 (1933–1938) edited by Mark Roseman and myself. For an analysis that focuses more on the perpetrator-related aspects of the topic, see my “‘. . . im öffentlichen Interesse.’ Staatsanwaltliche Ab-stammungsklagen im kontext der NS-Judenpolitik,” in
   Deutsche, Juden, Völkermord. Der Holocaust als Geschichte und Gegenwart
   , ed. Jürgen Matthäus and klaus-Michael Mallmann (Darmstadt: wissenschaftliche Buchgemeinschaft, 2006), 123–140. I thank the participants of the Miller Symposium at the University of Vermont, especially Beate Meyer, for their valuable comments. The views presented here are those of the author and do not reflect the opinion of the USHMM.
   
2. See Jürgen Matthäus, “Between fragmented memory and ‘real history’: The LBI’s perception of Jewish Self-Defence, 1955–1970,” in
   Preserving the Legacy of German Jewry: A History of the Leo Baeck Institute, 1955–2005
   , ed. Christhard Hoffmann (Tübingen: Mohr/Siebeck, 2005), 375–408; here, 394–395.
   
3. For a concise introduction to the debate, see Nechama Tec,
   Jewish Resistance: Facts, Omissions, and Distortions
   (washington: USHMM occasional Paper, 1997).
   
4. Marion kaplan,
   Between Dignity and Despair: Jewish Life in Nazi Germany
   (New York: oxford University Press, 1998), 5, 229, 239n2. The term “social death” was coined by orlando Patterson to describe the distinctive features of the slave condition (ibid
   .,
   239n2).
   
5. See especially konrad kwiet and Helmut eschwege,
   Selbstbehauptung und Widerstand. Deutsche Juden im Kampf um Existenz und Menschenwürde 1933–1945
   (Hamburg: Christians, 1984); Francis R. Nicosia, “Resistance and Self-Defence. Zionism and Antisemitism in Interwar Germany,”
   Leo Baeck Institute Yearbook
   xLIV (1997): 123–134. For different manifestations of Jewish reactions, see also Arnold Paucker,
   German Jews in the Resistance 1933–1945: The Facts and the Problems
   (Berlin: Gedenk-stätte deutscher widerstand, 2005), and “Changing Perceptions: Reflections on the Historiography of Jewish Self-Defense and Jewish Resistance, 1890–2000,” in
   Jüdische
   Welten. Juden in Deutschland vom 18. Jahrhundert bis in die Gegenwart, ed. Marion kaplan and Beate Meyer (Göttingen: wallstein Verlag, 2005), 440–456.
   
6. Raul Hilberg,
   The Destruction of the European Jews
   , 3
   ^rd
   ed. (New Haven: Yale University Press, 2003), 20–27, 1104–1118. See also Hilberg’s
   Perpetrators, Victims, Bystanders: The Jewish Catastrophe, 1933–1945
   (New York: Aaron Asher, 1992).
   
7. kaplan,
   Dignity
   , 230. Detlev Peukert,
   Inside Nazi Germany: Conformity, Opposition, and Racism in Everyday Life
   (New Haven: Yale University Press, 1987), 82–85. Peukert describes dissident behavior of German non-Jews in terms of a scale ranging from nonconformity via refusal and protest to resistance.
   
8. Hilberg,
   Destruction
   , 24.
   
9. Avraham Barkai, Paul Mendes-Flohr, and Steven Lowenstein,
   Deutsch-Jüdische Geschichte der Neuzeit. Aufbruch und Zerstörung 1918–1945
   , vol. 4 (Munich: C.H. Beck. 1997), 226, 363.
   
10. See the pioneering study by Beate Meyer,
    “Jüdische Mischlinge
    .
    ” Rassenpolitik und Verfolgungserfahrung 1933–1945
    (Hamburg: Dölling und Galitz Verlag, 1999).
    
11. Meyer,
    “Jüdische Mischlinge,”
    465 (figures on
    Mischlinge
    for 1939).
    
12. See Cornelia essner,
    Die “Nürnberger Gesetze” oder die Verwaltung des Rassenwahns 1933–1945
    (Paderborn: Schöningh, 2002).
    
13. kaplan,
    Dignity
    , 35, 60.
    
14. For the law of 7 April 1933, the Nuremberg Race Laws, and their first supplementary decrees, see karl A. Schleunes, ed.,
    Legislating the Holocaust: The Bernhard Loesener Memoirs and Supporting Documents
    (Boulder: westview, 2001), 154–157, 173–177. The Nuremberg Race Laws, passed on 15 September 1935, defined Jews as persons who were descended from three or four Jewish grandparents, or persons with two Jewish grandparents who either belonged to the Jewish religion or were married to a Jew at the time of the enactment of the Nuremberg laws. A “
    Mischling
    of the first degree” was a person with two Jewish grandparents who did not belong to the Jewish religion and was not married to a Jew; a “
    Mischling
    of the second degree” was a person with one Jewish grandparent.
    
15. See John M. Steiner and Jobst Freiherr von Cornberg, “willkür in der willkür. Befreiungen von den antisemitischen Nürnberger Gesetzen,”
    Vierteljahrshefte für Zeitgeschichte
    46 (1998): 143–187; Jeremy Noakes, “The Development of Nazi Policy Towards the German-Jewish ‘Mischlinge’ 1933–1945,”
    Leo Baeck Institute Yearbook
    xxxIV (1989): 291–354.
    
16. For the rightwing fringe of the Jewish political spectrum in the weimar Republic and the early Nazi era, see Matthias Hambrock,
    Die Etablierung der Außenseiter. Der Verband nationaldeutscher Juden 1921–1935
    (Cologne, weimar, Vienna: Böhlau Verlag, 2003), 567–699; Carl J. Rheins, “The Schwarzes Fähnlein, Jungenschaft, 1932–1934,”
    Leo Baeck Institute Yearbook
    xxIII (1978): 173–197; “The Verband nationaldeutscher Juden, 1921–1933,”
    Leo Baeck Institute Yearbook
    xxV (1980): 243–268; and “Deutscher Vortrupp, Gefolgschaft deutscher Juden, 1933–1935,”
    Leo Baeck Institute Yearbook
    xxVI (1981): 207–229.
    
17. For an excellent case study of German-Jewish behavior during the weimar period, see Frank Bajohr, “‘Nur deutsch will ich sein.’ Jüdische Populärkünstler, antijüdische Stereotype und heutige erinnerungskultur. Das Beispiel der Hamburger Volkssänger ‘Gebrüder wolf’,” in
    Jüdische Welten. Juden in Deutschland vom 18. Jahrhundert bis in die Gegenwart
    , ed. Marion kaplan and Beate Meyer (Göttingen: wallstein Verlag, 2005), 373–396.
    
18. See Avraham Barkai,
    “Wehr Dich!” Der Centralverein deutscher Staatsbürger jüdischen Glaubens 1893–1938
    (Munich: Verlag C.H. Beck, 2002), 369–371.
    
19. Monika Richarz, “Der jüdische weihnachtsbaum—Familie und Säkularisierung im deutschen Judentum des 19. Jahrhunderts,” in
    Geschichte und Emanzipation, Festschrift für Reinhard Rürup
    , ed. Michael Grüttner, Rüdiger Hachtmann, and Heinz-Gerhard Haupt (Frankfurt am Main: Campus, 1999), 275–289. For a compelling overview, see Marion kaplan, ed.,
    Jewish Daily Life in Germany, 1618–1945
    (New York: oxford University Press, 2005).
    
20. See Barkai,
    Centralverein
    ; Nicosia, “Resistance”; Jehuda Reinharz, “The Zionist Response to Antisemitism in Germany,”
    Leo Baeck Institute Yearbook
    xxx (1985): 105–140.
    
21. “
    Es war keine Blüte, aus dem Untergang herausgewachsen! Der größte Teil der Juden ist zwangsläufig auf sein Judesein hingewiesen worden, und es wurde der Versuch gemacht, Judentum zu begreifen und lebendig zu machen.
    ”; Franz Meyer (1897–1972), at the Leo Baeck Institute working session, 14 May 1961, LBIJMB, MF 491, reel 26, folder 8/2 (meeting minutes). Meyer was a member of the Reichsvertretung board from 1933 to 1939, and president of the Zionist Federation for Germany (
    Zionistische Vereinigung für Deutschland
    ), between 1937 and 1939.
    
22. For statistical aspects of relinquishing the Jewish faith, see Peter Honigmann,
    Die Austritte aus der jüdischen Gemeinde Berlin 1873–1941
    (Frankfurt am Main, New York: Peter Lang, 1988).
    
23. “Aims and tasks of the Reichsverband,” speech by Richard wolff to members of the
    Reichsverband der nichtarischen Christen
    , 21 February 1934, in Richard wolff,
    Wir nichtarische Christen. Drei Reden vom Vorsitzenden des Reichsverbandes der nichtarischen Christen
    (Frankfurt an der oder: no publisher, 1934), 11.
    
24. According to Noakes, “Development,” 319, until May 1941, there were only 263 successful petitions out of a total of 9,636 by persons requesting to be reclassified as
    Mischlinge
    or “Aryans.” See also Meyer,
    Jüdische Mischlinge
    , 108; Alexandra Przyrembel,
    Reinheitsmythos und Vernichtungslegitimation im Nationalsozialismus
    (Göttingen: Vandenhoeck & Ruprecht, 2003), 101–120.
    
25. See Thomas Pegelow, “Determining ‘People of German Blood,’ ‘Jews’ and ‘Mischlinge’: The Reich kinship office and the Competing Discourses and Powers of Nazism, 1941–1943,”
    Contemporary European History
    15 (2006): 43–65; eric ehrenreich,
    The Nazi Ancestral Proof: Genealogy, Racial Science and the Final Solution
    (Bloomington: Indiana University Press, 2007). For an organizational history, see Diana Schulle,
    Das Reichssippenamt. Eine Institution nationalsozialistischer Rassenpolitik
    (Berlin: Logos, 2001).
    
26. Pegelow, “Determining,” 64.
    
27. Meyer,
    Jüdische Mischlinge
    , 113–131. See also kaplan,
    Dignity
    , 83; Anke Schnabel, “Im Schatten der Nürnberger Gesetze. Statusklagen jüdischer kinder am Berliner Landgericht 1938–1945,” MA thesis, TU Berlin 2004. I thank Anke Schnabel for providing me with a copy of her thesis.
    
28. of the approximately 4,000 cases under the family law novella that form part of the existing collection “Staatsanwaltschaft beim Landgericht (LG) Berlin” held at the Landesarchiv Berlin (hereafter, LAB A Rep. 358–02), roughly 700 have been identifi as involving Jews or
    Mischlinge
    , of which sixty-four cases involving sixty-one persons form the basis for this chapter. For the wider context, see Matthäus, “Interesse.” For Jewish population fi es, see wolf Gruner,
    Judenverfolgung in Berlin 1933–1945.
    

    Eine Chronologie der Behördenmaßnahmen in der Reichshauptstadt
    (Berlin: edition Hentrich, 1996).
    

29. Staatsanwalt Rexroth, “Die Familienrechtsnovelle vom 12. April 1938 (Teil 1),”
    

    Deutsche Justiz
    18/1938 (6. Mai 1938): 707–716.
    

30. See “Übersicht über die Verfolgungen gegen die Juden in den zentraleuropäischen Ländern (18.–24. Mai 1938),” world Jewish Congress office Paris, USHMM Archive RG 11.001.M36 (osobyi Archive Moscow 674–1-109), reel 106.
    
31. See regulation by
    Reichsstelle für Sippenforschung
    , 16 November 1939 (Przyrembel, Reinheitsmythos, 114–115); regulation by Reichsinnenministerium (Ie 176 III/42), 2
    

    November 1942, BArch R 3001/488, 404.