"Non-Germans" Under the Third Reich (109 page)

In addition, special law exclusively for “non-Germans” was introduced from 1940 on. Although this involved not civil law but regulations under public law, such as drastic restrictions in real estate law and the law of enforcement,
¹⁶
as well as the confiscation regulations dealt with above,
¹⁷
these are worthy of mention here because they are representative of the scope with which the disfranchisement of the local population was to be implemented under flimsy pretenses.
¹⁸

Apart from these special regulations, civil law as a whole was not regulated, although innumerable questions of legal relations between Germans and Poles were waiting for an answer. As the minister of justice reported to the minister of the interior, the consequence of this unclear legal situation was that the courts were very uncertain about the scope of the analogous application of German law.
¹⁹
This applied in particular to areas of the law that demanded that circumstances be absolutely clear, for instance procedural law, land registry and registry law, family law (marriage law), and so forth. It became evident that the principle of applying in the Annexed Eastern Territories “at least the fundamentals and major elements” of the civil law in force in the Reich without the aid of the legislators could not last in the long term.
²⁰
The inevitable consequence was that disputes arose about which provisions of Reich law were to be applied directly, which “analogously,” and which not at all. Despite their emphasis on the principle that the courts had to be flexible because of the needs of “German development work” in the East, both the courts themselves and the Ministry of Justice
²¹
were forced to admit that the circumstances “absolutely” demanded explicit regulation by law.

II. Disputes between the Judicial Administration and the Political Powers about the Implementation of Civil Law

Despite this, the administration of civil law in the Annexed Eastern Territories remained without any legal basis for two whole years, because the relevant political powers (Party leadership, the head of the Security Police and the Security Service), and in particular Himmler in his capacity as Reich Commissar for the Strengthening of German Nationhood, who controlled the entire “ethnic policy” (the expulsion of Poles from the Eastern Territories), rejected any legal stabilization for reasons of the “ethnic struggle” and blocked the implementation of even the most minor formal legal basis for the “non-Germans.” In the area of penal law, the judicial authorities had given in to the more severe policy desired by the Nazi leadership,
²²
but in the area of civil law, which was much less suitable for such considerations, there were considerable disputes between the judicial authorities and the antilegal considerations of the political leadership. As head of the Deputy Führer’s Office, Bormann emerged as a particularly strong hawk. He complained, for instance, that by the application of the German Civil Code, the judges had already “allowed Poles a form of treatment that must be reserved for ethnic German comrades”; he even considered the idea that “perhaps … in individual instances, the execution of court rulings would have to be prevented by police measures.”
²³

The Ministry of Justice had consented in principle to the Party’s desire to discriminate against Poles and, since they (the Poles) were stateless, to treat them as (stateless) foreigners under prevailing international private law,
²⁴
but even this “inferior law” for Poles was too much for Bormann: he would have preferred to have civil law not implemented at all, or only for the German inhabitants of the Annexed Eastern Territories; all the concessions that the Ministry of Justice was prepared to make therefore seemed totally inadequate in Bormann’s eyes.
²⁵
The implementation of civil law, he told the minister of justice, in complete agreement with the police leadership, might result in the “unsuitable equal status of Poles and Germans”;
²⁶
the legal uncertainty that currently existed was preferable, because the implementation of German law would “only favor the Poles.”
²⁷
Security in the law was necessary only for Germans,
²⁸
since only in this way could “economic development,” “in which only Germans can participate,” be guaranteed.
²⁹
On the one hand, the problem with the proposals by the minister of justice was “that the judges were tied too strongly to the law.”
³⁰
On the other hand, Bormann also wanted to avoid any autonomy of the courts.

The only possible solution for him was the ideal of all totalitarian rulers, total control of the courts by the Party. As a result, he also rejected the umbrella clause for the application of the Civil Code proposed by the minister of justice, under which account was always to be taken of “ethnic interests,” because a “political decision … would be imposed” on the judges who were unable to make it.
³¹

Faced with this extreme attitude, the administrative heads in the Annexed Eastern Territories took a variety of stances. Most of them believed that the implementation of civil law was “expedient” in principle but favored very heavy discriminatory measures (exclusion of all rights of action and acquisition of property, prohibition on “mixed marriages” for Poles). Furthermore, implementation should not be a blanket measure but rather successive as required by the circumstances, not by Reich law, but by a decree by the
Reichsstatthalter
with the consent of the minister of justice, in order to emphasize still further their autonomy over Reich authorities.
³²
One exception was E. Koch, the higher district president and Gauleiter of East Prussia, responsible for the Zichenau Administrative District, who intended to rule the district solely by administrative directives and regarded the implementation of German law as “totally inappropriate.” The
Reichsstatthalter
of the
Reichsgau
Wartheland stated his consent to the implementation of the Civil Code, but he wanted to make its application no more than illusory, by supporting the proposal of the president of the Posen (Pozna
) Court of Appeal for the inclusion of a rider to the implementing decree such that German law applied to Poles only where this was commensurate with “German interests.” As the vice president of the Posen Court of Appeal expounded during an internal meeting on October 1, 1940, a personnel statute, an “inferior law,” a “special law” must be established for and applied to the Poles.
³³

Even such far-reaching proposals did not go far enough for the Party leadership. To eliminate the “unacceptable situation” that a Pole could sue a German or give evidence against a German, Bormann demanded a measure that so far had not been contemplated by the Nazis: the total political control by the
Party
of all proceedings in which Poles were involved. This would be effected by demanding—with the agreement of the Gauleiter of the Warthegau—a preliminary examination by the NSDAP (
Kreisleiter
) of all actions by Poles against Germans.
³⁴
The
Kreisleiter
would then decide if the action could be brought before the courts.
³⁵
What Bormann really wanted—as the Reich Chancellery complained—was to reduce the Polish population to the level of “natives” totally dependent on the goodwill of the Party.
³⁶

Since both the Party leadership and the Ministry of Justice stuck to their positions, the only solution was to ask for a Führer decision. Before this decision, which would have inevitably been against the judicial authorities, was taken, the Ministry of Justice retreated and hastened to accommodate the wishes of the Party to a large extent (“the differences of opinion are not so fundamental as might at first appear”).
³⁷
In contrast to Bormann, the ministry “merely” insisted on the principle that “
some
sort of legal system must apply to the Poles” and that this could only be the German one. In the question of the content and scope of this legal system, however, the ministry made substantial concessions. But even these were still too distant from Bormann’s radical ideas. By constantly rejecting and protesting against the proposed reforms emanating from the Ministry of Justice,
³⁸
he was able, with the support of the head of the Security Police and the Security Service, who declared his solidarity with Bormann in all points,
³⁹
and of the
Reichsführer
-SS himself,
⁴⁰
to delay the implementation of the Civil Code and maintain the lawless situation until the mass expulsion (“resettlement”) of Poles and Jews from the Annexed Eastern Territories had been initiated, the settlement of resettled Germans from the Baltic states and Soviet territories had started, and numerous legal issues that were awaiting a solution had become irrelevant.

Only after long negotiations did the minister of justice and the NSDAP (the deputy Führer) finally reach agreement in 1941 on the following basis:

implementation of Reich law by a statutory order of the minister of justice (not by decrees by the
Reichsstatthalter
);

consideration of the “special circumstances” in the Eastern Territories in the entire administration of civil law (material political qualification); and

political preliminary examination of actions by Poles against Germans by the responsible presidents of the courts of appeal, if the court expressed reservations about the proceedings (i.e., no preliminary examination of each action by the
Kreisleiter
).

III. Decree on the Implementation of Civil Law in the Annexed Eastern Territories, September 15, 1941 (Decree on the Civil Law in the East)

The result of this agreement was the Decree on the Implementation of Civil Law in the Annexed Eastern Territories of September 15, 1941 (Decree on the Civil Law in the East), together with the First Implementing Regulation of the same date.
⁴¹
This decree implemented the entire civil law in the Annexed Eastern Territories effective October 1, 1941, without distinguishing between Germans and “non-Germans.” Because the enumeration of the individual provisions now implemented would have been too voluminous, the decree settled for the enumeration of the relevant subject areas and fields of law whose provisions (in their prevailing versions) automatically applied in the Annexed Eastern Territories. Under section 1 of the Decree on the Civil Law in the East, for instance, the laws and other regulations for which the Ministry of Justice was responsible, including the associated penal regulations, now applied.

The major elements of substantive law included civil law, commercial law,
⁴²
copyright, publishing rights and competition law, and insurance law (from January 1, 1942); explicitly excluded were, among others, rent protection law, hereditary farm law, and homestead law, because these provisions contained particular privileges that, of course, could not be allowed to Poles. Legal transactions and acts undertaken after August 31, 1939, but before October 1, 1941, were declared valid where they corresponded to the implemented civil law at least “analogously” (sec. 1, Implementing Regulation). This legalized the former legal situation with retroactive effect. Practitioners did not view the Decree on the Civil Law in the East as a constitutive act but rather as a clarification needed for reasons of security in the law, as confirmation of the previous administration of justice oriented toward “ethnic interests.”

1. Substantive Law

a. The Principle of Political Reservation for the Application of German Law in the Annexed Eastern Territories (Sec. 4)

Despite the fact that the Decree on the Civil Law in the East gave the impression that almost all German civil law now applied irrespective of the person concerned, it was qualified by numerous conditions. In the same way as had been formulated in the Führer decree of October 8, 1939, all these legal regulations were subject to the general condition of the “effect of assimilation,” that is, the “ethnic struggle” against the Poles, laid down in section 4 of the political umbrella clause.
⁴³
This regulation, which represented the clearest admission of a totally politicized administration of law, read as follows: