"Non-Germans" Under the Third Reich (123 page)

b. The function of the extraordinary powers within the Third Reich, however, was by no means limited to direct execution of acts of violence, expulsion, and extermination. Rather, to an ever increasing extent and with the full approval or toleration of the political leadership, they appeared as
organs of correction
against the administrative and judicial authorities. Whenever it was perceived that discriminatory policy was not being pursued expeditiously or thoroughly enough by means of legislation, administrative fiat, or judicial decision, “corrective measures” on the part of Party and police offices came into play. This is particularly apparent in the practice of police “protective custody” or “preventive detention” as carried out in the concentration camps; such detention became ever more common both for “non-German” offenders and for any other suspicious or unpopular persons and represented a serious infringement upon the jurisdiction of the administrative and judicial authorities. To be sure, such violations of administrative jurisdiction first made themselves felt only as concrete intervention in individual cases and were to a large extent accepted by the authorities. The belief that these instances were nothing more than individual acts of arbitrariness or political caprice that were in any case immune from administrative or judicial scrutiny prevented the recognition that such encroachments, far from being mere eruptions of individual power politics on the part of local Party bosses or police officers, were in fact part of a long-term and successful strategy to supplant the traditional administration to the greatest possible extent.

These encroachments upon administrative and judicial jurisdiction finally reached the point where entire territories and groups within the Reich were detached from the responsibility of the administrative and judicial authorities and transferred—by means of special act, “understanding,” internal guidelines/decrees, and legal empowerment—to that of the police. Recall, for instance, that the police in the Altreich had usurped responsibility for regulating
each and every
aspect of the living conditions of the foreign labor force and that they had also—after 1942 with the decisive support of the Party and the Reich Ministry of Justice—taken charge of the administration of criminal justice against “non-Germans.” Criminal prosecution of Jews was even transferred to the police by legislative act (the Thirteenth Decree to the Reich Citizenship Law), since in this area there were no judicial reservations about openly declaring, by means of formal legislation, the power shift in favor of the police.

In the Annexed Eastern Territories, the police took over the prosecution of all types of everyday crime; likewise, they largely usurped the prosecution of all crimes of insubordination against the occupying forces by means of (illegal) drumhead courts-martial, which were later legalized de facto by the Decree on Penal Law for Poles.

The general lack of legal standards specifically promulgated for the Eastern Territories and the failure to adopt regulations in effect in the Reich (e.g., the futile attempts to introduce the Prussian police administrative law) resulted in a vacuum in the remaining areas of law as well, one in which a kind of generalized police jurisdiction over anything and everything having to do with “non-German” populations could take root. Conditions in the General Government were even more extreme; there, the prosecution of Polish insubordination against the occupying forces was entrusted to police drumhead courts-martial from the first. Later on, their brief was expanded beyond all bounds by the so-called Sabotage Decree of October 2, 1943, so that, ultimately, any kind of misdemeanor or violation of German statutes whatsoever was susceptible to capital punishment by the drumhead courts-martial. Of course, police power encroached upon other areas as well; examples include the illegal operations carried out against actual or suspected members of the Polish resistance movement, which took place to the total exclusion of the judiciary, or the prosecution of Jews who had escaped from the ghetto, something that originally came under the jurisdiction of the special courts but was usurped by the police.

Fundamental to all such proceedings, as the present research has shown, was the idea of the police and Party leadership that, at bottom, criminal prosecution of “non-German” persons, for which the judiciary was entirely unsuited, was to be exclusively the responsibility of the police. However, as demonstrated by the usurpation of
administrative responsibilities
, this principle of exclusive police jurisdiction was to have been expanded into every other area, since from the National Socialist point of view, complete subordination to police statutes, that is, forced labor and incarceration (and, if necessary, extermination in police-run camps), or at the very least constant police surveillance, was seen as the only appropriate way of life for “non-Germans.” The treatment of the individual under the totalitarian state—constant supervision, required labor for everyone, forced labor for undesirables, eradication of actual or suspected opponents (in short, the principle of injustice)—here reaches its apogee: the concentration camp as the permanent home and workplace for all dissidents, for all those persons or groups who for racial, political, or any other reasons were expelled from the community of law.

The conclusions to be drawn from this rise in National Socialist extraordinary powers may be summarized as follows: the traditional administration could be used for the revolutionary goals of National Socialism to the extent that the principles and aims of oppression were, by contemporary standards, justifiable either in terms of administrative procedure or jurisprudence or were otherwise in some way rationally comprehensible.

Because of the impossibility of integrating them into the thought processes and procedures of the administration, actions that went beyond such limits, measures that were
patently
arbitrary or unjust, as for example the annihilation of the Jews or the expulsion and eradication of the Polish intelligentsia, could not be executed without calling into question the administration’s very existence. Thus, the usefulness of the administration ended at such borderline cases; this was where the practice of using the traditional instruments of order and the arguments of the judiciary to prop up, directly or indirectly, the revolutionary goals of totalitarian power was bound to fail. This explains how the above-mentioned “division of responsibilities” was, as demonstrated by the numerous examples cited, accepted and supported by the administration at least as far as concrete results were concerned—because they could then feel absolved of responsibility for all such actions. But when it became a question of areas that originally belonged under the jurisdiction of the administrative or judicial authorities, there were only two alternatives for confronting crude “corrective measures” on the part of police and Party headquarters: either the administration carried the day with typically administrative arguments (e.g., questions of jurisdiction or of technical or economic efficiency), thus curbing the use of arbitrary political violence; or else they relinquished their jurisdictions, thus (of course) also giving up all rights of participation.

The examples discussed in the present study show that administration and judiciary attempted to follow both courses. In cases in which their jurisdictions were formally
uncontested
, they clung to those jurisdictions to the last, even at the cost of forgoing fundamental legal principles—a state of affairs particularly evident in the controversy over the introduction of the Decree on Penal Law for Poles. However, where the original jurisdictions were undermined by constant intervention and “corrections” on the part of the police, or else had become
questionable
even by contemporary legal standards—and in the later years of the war this was increasingly the case with regard to the treatment of Jews and “non-Germans”—they were not stubbornly defended; rather, they were often recklessly abandoned, perhaps in part from the consideration that this simultaneously permitted the avoidance of difficult situations that could have led to tensions with the forces in control of police and Party.

Thus, if empirical evidence confirms the premise that the revolutionary goals of National Socialism could not be completely carried out with the old administrative apparatus, but only up to what could be termed inherent administrative limits, we come full circle to the starting point of this study: namely, to the dominant role played by the bureaucracy, whose compliance, on the one hand, lent the political system of National Socialism its great stability and efficiency while, on the other hand, its inertia and the inherent characteristics of the system prevented the complete success of the National Socialist ideology within its domain, or at least acted in manifold ways as a restraint and check.

In studies of this type, finally, it seems reasonable to ask what inferences or conclusions might be drawn from the development of law under the Third Reich. As in all studies of a historical subject, this question must be met with skepticism. If any conclusions may be drawn, it can only be done in the form of a few guidelines that, abstracting from the concrete historical situation, must be formulated generally enough that they may also be applied to other kinds of political systems.

One such guideline could well be the conclusion that the introduction, by means of
law
and the
legal system
, of discriminatory practices that exceed the bare minimum of special regulations necessary for the survival of the state results not only in general
inequality
, but brings with it, as its necessary corollary, the
relinquishment
of law itself. For in doing so, opportunities are created for the subordination of
any
group and
any
field of law to entirely arbitrary special sanctions and legal proceedings that are not subject to legal or ethical limitations—thus, in a manner of speaking, employing the law to open the floodgates of despotism. Discrimination has been and is common in many states; however, only its elevation to the status of law endows it with state authority and normative validity. In Germany, the tradition of legal positivism gave discrimination under special statute the color of binding law in the traditional sense, whereas in other systems such extraordinary law is simply not recognized as law at all.
¹⁵
By the same token, as this study makes plain, such a legal system also ensures continuity, that is, the perpetuation of discriminatory practices into the indefinite future. For inherent in any legislation is the tendency to cleave to existing regulations and, if anything, to expand them, rather than mitigating their effects or abolishing them entirely.

As a further conclusion from the example of the smoothly implemented surrender of general equality, it may be asserted that a highly organized administrative and civil service apparatus oriented to the doctrine of efficiency can be utilized to a high degree, indeed almost without restriction, to further the (totalitarian) goals of a revolutionary regime, even when that apparatus was formerly committed to entirely different basic concepts and standards, provided that the forms of traditional legality, procedures, and nomenclature are at least nominally preserved. The loss of or indifference to moral values and the principles of an ordered state, their want of support in the normative and organizational structure of society, the resulting dissolution of traditional jurisdictional boundaries, and their infiltration by the extraordinary powers of totalitarianism, all lead to a systemic breakdown and arbitrariness in the legislature’s treatment of central concepts, to unlimited discretionary latitude on the part of the authorities and the political powers that control them, and ultimately to the subversion of the traditional administrative apparatus itself. The continuity of law, the preservation of a formal facade by a revolutionary regime, serves to secure the alliance of the old leadership classes with modern practitioners of discrimination and mass persecution and leads to an inseparable bond, even identification, with the practices of injustice, as long as the position of those leadership groups (army, bureaucracy, industry) remains unquestioned or is even, as the Nazi regime was particularly astute at doing, strengthened and expanded. Thus, the consciousness of what is just shrinks in favor of a now merely procedural concept of legality; the law is robbed of its substantive content, loses its independence, and takes on an
exclusively
instrumental or technical character. “Legal problems” can henceforth arise only in regard to the manner in which the policies of the leadership can best be justified and carried out most efficiently. The law thus becomes a
quantité négligéable
, that is, a mere
means
by which all designs of so-called political or administrative expediency can be realized. This development can be traced back to the recognition that the formulation of law can always be managed in advance by political fiat. This applies not only to sub-sumptions of a juristic nature, that is, to the interpretation of legal standards, but also to rulings in individual cases through control of the political images, information, and knowledge available to those who are called upon to implement the law. In order to preserve and promote the law, therefore, it is always necessary to have in place sufficient legal checks (in the form, for instance, of a constitutional court),
¹⁶
which in turn require the support and institutional guarantees provided by constitution and law—a problem confronted by every political system. The example of the Nazi period merely makes this particularly plain.

Appendixes

Appendix 1: The Reich Structure (State and Party)

This chart has been reproduced with the kind permission of Professor Dr. Hubert Rottleuthner, Institute for the Sociology of Law, Free University of Berlin.