"Non-Germans" Under the Third Reich (121 page)

2. This formally smooth transition from the administrative thinking of the Weimar period to the ideas of National Socialism meant that in principle there were no
legal
restrictions, either substantively or in regard to persons, upon the idea of racial hatred.

a. The examples cited in this study confirm the thesis that in its very approach, the concept of special law was designed to allow for unlimited interpretation. Although at first only the Jews, as the incarnation of the “racially foreign” element within the German nation, were the objects of special legal provisions, other peoples or ethnic groups judged undesirable “foreign racial” elements within the population (some for racial, some for political reasons) soon followed. In accordance with the National Socialist concept of a “racially” organized and hierarchized society, these models of special jurisprudence were ultimately applied to all “non-German” inhabitants of the Reich, including those groups deemed for racial or political reasons to be “of kindred blood” or “racially related”—which in itself ought to have precluded racial discrimination. Not only the “undesirable” populations of the occupied Eastern European regions were subject to discrimination, but also foreign workers in Germany from Western and Northern Europe and other “non-German” groups considered for reasons of racial politics to be “undesirable” (such as White Russians, Goralians, or Ukrainians) were put under special statutes, as described in the sections on labor and police law. And although these statutes were generally milder in nature than those in effect for the first groups, they could at any time be tightened or relaxed according to the political needs of the moment.

Application of the special-law concept, however, was by no means limited to “non-German” persons or groups. As shown in particular for the area of criminal law, albeit not in great detail, judgments under special law were in fact imposed on
all
unpopular persons and groups (political and clerical opponents, criminals, work dodgers, etc.), all of whom were lumped together under the catchword
asocial
. The term
asocial
here means those who were expelled from the community and thus from the realm of law, a condition that was, at least for public consumption, euphemized under the National Socialist expression “alien to the community.” As mentioned in the introduction, this suggests points of departure for further studies that might extend the investigation into particular aspects of discrimination in the Third Reich. In the present context, it will suffice to recall the Law on Aliens to the Community frequently cited above; meant to take effect on January 1, 1945, it provided for the mandatory imprisonment of all “aliens to the community” in “police camps” (concentration camps) or “reformatories” (work camps).

Empirical evidence thus confirms the premise that the principle of special law became progressively detached from its racist origins, becoming instead the
general legal and administrative principle
of National Socialism. Although most starkly applied against “non-German” individuals and groups, it claimed validity for all “undesirable” persons regardless of racial origin. The principle of special law (originally motivated by racism) thus becomes inseparably intertwined with the idea of oppression. It is an expression of the contempt for the individual peculiar to any totalitarian system: the compulsion to absolute sacrifice of the individual to the state as embodied in the “ethnic community,” segregation of all those who, in the opinion of state leadership, are unwilling or unable to subjugate themselves and are therefore worthless to the state, that is, asocial, hence “inferior.”

b. Such exclusion of undesired elements, however, did not (as official usage and propaganda would have had one believe) mean merely
separation
from the “ethnic community.” This would not have kept the persons in question from retaining some sort of legal status, if only an inferior one. Rather, the concept of special law in the National Socialist sense, as illustrated in numerous examples, resulted in the affected persons being excluded,
expelled
, from the community of law; they lost all legal standing, indeed all status in the legal sense. In other words, they became outlaws. Not for nothing did National Socialism develop a predilection for the word
Ächtung
(outlawry, ostracism), a term adopted from Teutonic law; not for nothing was this term to be enshrined, as a new criminal sanction in specific cases, in the new Penal Code of the Third Reich. Thus, the principle of special law under National Socialism not only meant the abolition of individual rights and the introduction of an inferior legal status for “non-Germans” and other undesirables; it became itself an expression of the absence of rights, of nonlegality, of injustice. In a
substantive
sense, then, the principle of special law was nowhere more restricted than in regard to persons. From the outset every act of “non-German” individuals potentially fell under special legal regulation. As a result, every legal protection, every personal or economic activity, was deemed a “privilege” necessitating special permission and having to be first “earned” by dint of exceptional achievements (work performance, good behavior).

It was not possible, within the present context, to pursue in detail the question of whether the National Socialist principle of special law
necessarily
led to the physical extermination of persons, groups, or population elements deemed undesirable on racial or political grounds. To round out the picture of the significance and scope of the concept of special law would require further studies of whether, as can be surmised, special legal practices were ultimately predestined to end in the raging tide of annihilation of which Auschwitz is the symbol. For instance, it would be necessary to examine whether, for the purpose of methodical annihilation of undesirable minorities, a straight line can be drawn from the Führer Decree for the Strengthening of the German Nation dated October 7, 1939, to the decree of the chief of the SIPO and the SD dated September 21, 1939, on the Deployment of Special Operations Squads (
Einsatzgruppen
), to the unwritten police authorization allowing the imposition of protective custody and preventive detention and the expulsion and ghettoization of entire population groups; or whether, taken on a case-by-case basis, the idea of special legal treatment of undesirables could have been brought to a halt at a status of inferior rights or of a fundamental lack of legal rights that would have retained a guarantee of due process. If the present study can contribute anything at all to answering this question, it is the conclusion that, at least in respect to their consequences, numerous plans and actions of the Nazi leadership aimed at
discriminating
against “non-Germans” closely approximated their
physical annihilation
as well, since they were based on the totalitarian idea of the worthlessness and the fundamental lack of legal rights of the individual. Forcing “non-German” persons or groups to live at or below subsistence level, inhumane expulsion and resettlement, the planned or intentional death by starvation (as long as enough other laborers were available) of countless persons and groups were
just as much
a fundamental component of the National Socialist idea as the plans and schemes for the methodical annihilation of particular groups (e.g., of the Jews or the leadership circles of the conquered nations of Eastern Europe) that have occupied most of the previously published literature.

3. The third conclusion resulting from this study can be summarized as follows: The realization of National Socialist goals, especially as regards the treatment of the “non-Germans,” permitted the legislative and civil service branches almost unlimited latitude for designing their own rules. Since these same goals were only loosely defined (“racial struggle,” “suppression,” “separation” of Germans and “non-Germans,” etc.), the resulting interpretive latitude was first of all to the advantage of the departmental bureaucrats who carried out the preparatory
legislative
work. They themselves were able to flesh it out with numerous blanket clauses (“significance of annexation,” “ethnic interests,” “anti-German activity,” “interference with the work of German reconstruction,” “German interests,” etc.). At the same time, they hardly ever set legal definitions, in order to keep developments perpetually “flexible.” Accordingly, the central recommendations and
guidelines
for managing administrative and judicial procedure described only vaguely what was intended by the leadership and thus were of little or no help in interpreting legal standards. The result was not only a general sense of legal uncertainty; more importantly, the decision as to when the facts of a particular case met the conditions of the above-mentioned blanket clauses was shifted to ever lower levels, so that, ultimately, discriminatory practices were largely dependent on the whim and discretion of whichever department was involved.

Civil servants and judicial authorities made widely differing use of this virtually limitless discretionary latitude. The portrait that emerges within the framework of the regional jurisdictions herein studied confirms the premise that, indeed, one can only speak of a progressive
escalation
, from west to east, in the intensity with which special law was applied, something that the following summary will serve to demonstrate.

In the region of the Altreich, the formal transition from liberal to National Socialist ideology was relatively smooth. Many civil servants and authorities who had all professed allegiance to liberal and constitutional principles before the Nazi seizure of power were now perfectly happy to put into practice the exact opposite, namely inequality, open discrimination, and despotism. However, the fact that the established administrative and judicial apparatus was principally responsible for enforcing the system of special law in itself exerted a certain moderating and inhibitory effect—that is, when actual practices are measured against the extreme ideas of the National Socialist leadership, in particular as expressed in Hitler’s remarks to his inner circle. In addition, special-law practices in the region of the Altreich, as far as domestic administration (excluding the police) and the judicial system were concerned, were at first tested “only” against German Jewish citizens; and since they were directed against
German citizens
, these practices were generally kept within the bounds of procedural legality. The formalization of discriminatory practices by means of laws and decrees guaranteed, on the one hand, the even-handed enforcement of despotic National Socialist concepts, while at the same time effecting a certain containment of said ideas, since they had to be integrated into the existing framework of judicial reasoning and legal standards. Finally, it must be remembered that in individual cases, that is, cases in which standards of special law had to be interpreted by administrative officials and the courts, the established principles of order, legal guarantees, and (to some extent) constitutionality as well were, despite all attempted influences to the contrary, still robust enough that despotic National Socialist concepts, much to the displeasure of the political leadership, could not be carried out as completely as was originally intended. Therefore, the domain of special-law practices was to be the conquered territories of Eastern Europe, where the political leadership was free to disregard established legal principles as it saw fit.

The virtually inescapable conclusion is that special law was applied with far greater intensity in the Annexed Eastern Territories than was the case in the Altreich. The concept of the National Socialist leadership whereby these regions were, politically and administratively, new “ethnic” territory wherein the authorities were to have a free hand without constitutional “impediments” was largely put into practice. Since in this instance an entire “non-German” population was at their disposal, one that was to be treated according to the principles of “ethnic warfare” (according to the principles of expulsion, “repression,” “intimidation,” and “annihilation”), a true
annexation
of the Eastern Territories to the Reich was not attempted. Rather, they were administered according to
colonial
precepts. Thus, in addition to the special-law model largely adopted from the Reich, there now appeared the new, radical policy of “ethnic warfare.” As shown in numerous examples, this meant not only a radicalization of the practical application of special law but also an escalation in the procedural sense, which in turn served to increase the intensity of special-law practices.

In the Annexed Eastern Territories, where the “elite” of the party bureaucracy (who were frequently ignorant of administrative procedure) and the special branches of the police were in constant competition and conflict with the traditional administrative authorities, the basic structures of special-law policy (in contrast with those of the Altreich) were characterized by an almost total lack of formal legality. The determining principles of special law were no longer set in place by means of the usual legislative process (adoption of Reich laws, decrees by the responsible Reich ministers or the local
Reichsstatthalter
with the approval of the Reich minister of the interior), but often merely by means of internal administrative instructions or ad hoc regulations by the responsible authorities (
Reichsstatthalter
, district president,
Landrat
). As in the Reich itself, such regulations were largely defined by limitless general clauses and vague guidelines that opened the floodgates to considerations of “ethnic interests,” that is, to despotism by individual ruling. This included reliance on “analogous” application of German law as well as the reluctance on the part of the authorities to fix normative definitions, particularly when these were to be officially promulgated. Moreover, the practice, in decrees, circulars, or individual directives, was frequently to sketch the ”grand design” and leave all else to the discretion of whichever authorities were responsible for a particular case. This lack of normative definitions created a vacuum into which arbitrary totalitarian power (of
Reichsstatthalter
, Party, police) could flow unhindered, and which, at least as it affected politically important areas of the civil service and the justice system (criminal law), generally could not be curbed by individual judges or legally minded department heads, since the orientation of the departments was, by dint of a deliberate personnel policy and other measures of control, “National Socialist through and through.”