"Non-Germans" Under the Third Reich (129 page)

19.
More details in Rüthers,
Die unbegrenzte Auslegung
, 270 ff.

20.
Cf. Kirn,
Verfassungsumsturz oder Rechtskontinuität
, 67.

21.
Ibid.

22.
See as an example E. Ebermeyer,
Denn heute gehört uns Deutschland
(1959), 76 f.; and Grunberger,
Das zwölfjährige Reich
(1973), 125 f. Cf. Hillgruber, “Die ‘Endlösung’ und das deutsche Ostimperium” (1972), 143.

23.
Picker,
Hitlers Tischgespräche
(1968), 27; but very few lawyers were acknowledged by Hitler—for example, Frick, Pöhner, and the head of the Reich Chancellery, H. H. Lammers (evening table talk on March 29, May 10, and July 22, 1942 (65 ff., 125, 127, 243). Of Lammers, Hitler said he was so industrious because he knew he was there to give the necessities of the state a legal underpinning (H. Picker and H. Hoffmann,
Hitlers Tischgespräche im Bild
[1969], 163).

24.
Similarly in the more recent
Polish Society under German Occupation
, by Jan T. Gross (1979), 31 f.

25.
With hindsight, an example of the identification of the state apparatus with the political program of the Nazis is the exact objective harmonization and synchronicity of the various Reich departments in the question of the persecution and economic exploitation of the Jews, so vividly described by Adler (
Der verwaltete Mensch
[1974]), part of the growing realization of how the implementation of the racial-political extermination program was characterized by a thoroughgoing methodicalness (Hillgruber, “Die ‘Endlösung’ und das deutsche Ostimperium”). However, it is evident that the Nazi leadership was unable to prevail in every instance in which the civil service was uncooperative. Examples include (1) the unsuccessful attempt of the leading circles in the judiciary and the police to remove “non-Germans”
generally
from the ambit of the judiciary and place them under the jurisdiction of the (summary) police courts and (2) the fact that, though the administration of justice paid lip service to the binding force of the Nazi philosophy as the basis for the interpretation of all written law, it remained intrinsic to the system that the judge’s obligation was to the law (this being the expression of the Führer’s will); cf. OVGE (Decisions of the Prussian Administrative Supreme Court), 91, 215; 92, 217; more details in Stolleis,
Gemeinwohlformeln im nationalsozialistischen Recht,
240, with further examples. This hindered legal interpretation at deviance with the law and had a systematic delaying and braking effect.

26.
More details in Kirn,
Verfassungsumsturz oder Rechtskontinuität
, 19 ff.

27.
Buchheim,
SS und Polizei im NS-Staat
(1964), 16 f.

28.
See also the summaries by Friedrich, “The German and the Prussian Civil Service” (1930), 283–453; A. Brecht, “Democracy and Administration,” in M. Ascoli and F. Lehmann,
Political and Economic Democracy
(1937), 217 ff. (no. 13); Brecht, “How Bureaucracies Develop and Function” (1954), 292:1 ff.; Brecht, “Bureaucratic Sabotage” (1937), 48 ff.; Brecht, “Civil Service” (1936), 202 ff.; Brecht and Glemstock,
Administration in German Ministries
(1940) (Brecht was the head of a government department and from 1921 to 1927 head of the Department for Constitutional and Civil Service Law in the Reich Ministry of the Interior, later [1927–33] working in the Prussian State and Finance Ministry. In 1933 he emigrated to the USA); Salomon, “Leadership in Democracy,” 243 ff. (no. 15).

29.
Regarding this method, see Nolte,
Die Krise des liberalen Systems
(1968).

30.
BVerfGE 3, 58 (98 ff.); 6, 133 (166, 197).

31.
This is especially true of the publications of the Academy of German Law (
Akademie für deutsches Recht
) and its committees, the key legal institution of the NSDAP. It counted among its members not only National Socialist lawyers but—when one considers the composition of its committees—virtually all the teachers of jurisprudence of rank and reputation, who among them produced a wealth of articles, commentaries, and lectures on the reform of the penal and civil codes and other areas of the law. For further examples, see the
Nationalsozialistisches Handbuch für Recht und Gesetzgebung
, edited by Hans Frank in 1934, whose authors were prominent law teachers. This work was widely used by students, lecturers, and judges; it was in a way a lexicon of National Socialism. Similarly well-known works included Dietze,
Nationalsozialistisches Naturrecht,
whose scientific substance was as thin as its distribution was wide, and the popular series
“Schäffers” Grundrissen
, one volume of which—
Staatsrecht
(Constitutional Law)—contained an exposition of scientifically indefensible, even
völkisch
, legal thinking (H. Nicolai), which found an eager readership among young lawyers since it contained the gist of what they needed to know for their examinations; see also Nicolai,
Die rassengesetzliche Rechtslehre
(1933).

32.
This is true, for example, of the “five basic principles of legal practice” defined by Carl Schmitt (“Neue Leitsätze für die Rechtspraxis” [1933]) and for the observations of other prominent legal scholars.

33.
The best example of this superficial equivalence of parlance is the authoritarian penal law (
autoritäres Strafrecht
), which was propounded using the same terms by National Socialist and non–National Socialist teachers alike. In a similar way, the terms
Volk
(people, nation),
völkisch
(racial, national),
Volksgemeinschaft
(national community),
Rasse
(race),
Volksschädling
(antisocial parasite),
Unschädlichmachen
(neutralization), etc. were constantly used in non-Nazi writing (cf. for example, H. K. Filbinger, “Nationalsozialistisches Strafrecht—Kritische Würdigung des geltenden Strafgesetzbuches und Ausblick auf die kommende Strafrechtsreform,” in
Werkblätter,
published on behalf of
Bund Neudeutschland (ND)-Älternbund
, nos. 5–6 [1935]: 265 ff.; H. Puvogel, “Die leitenden Grundgedanken bei der Entmannung von Sittlichkeitsverbrechern” [1937], pt. 2, sec. D). After 1945 this identity of parlance and terminology led to the problem of continuity in legal thinking after 1933 (for a fuller account, see Kirn,
Verfassungsumsturz oder Rechtskontinuität,
69 ff.).

34.
Were the investigations into the Nazi state to be pursued using the deductive methods described, it would become apparent that these elements were an integral part of the fundamental structures of the Nazi hegemony in every sphere: the latest research findings come to the same or similar conclusions; cf. S. Neumann,
Permanente Revolution
(1965), where the key elements are identified as terror, the authoritarian principle, fascism, a totalitarian elite (in leadership circles), and a totalitarian party with its own administration. According to Hayes,
Fascism
(1973), structural elements of National Socialism were the racial, elitist, and authoritarian principles and fascism and fascist economic theory. See also, more recently, Kirn,
Verfassungsumsturz oder Rechtskontinuität,
23 ff., 25 f., 29 ff., who sees three “poles” in the Nazi constitution: party, state, and the authoritarian principle. And see J. Winter,
Die Wissenschaft vom Staatskirchenrecht im Dritten Reich
(1979), pt. 1, chap. 6, A–D; and Bracher,
Zeitgeschichtliche Kontroversen
(1976), 27, 37, 53 ff., 66. This method could be used to make an empirical-comparative analysis of all totalitarian systems, the importance of which is repeatedly underscored by Bracher.

35.
Cf. for example, Scheuner, “Die nationale Revolution” (1933–34), 265, 325 ff.

Introduction. III. 1. The Führer Principle

1.
Hitler,
Mein Kampf
(1939), 436 ff., 444.

2.
Freyer,
Der Staat
(1925), 113 f.

3.
Cf. also Weber, “Der Reichspräsident” (1918); Weber, “Parlament und Regierung” (1918), 294 ff.

4.
Bracher, Sauer, and Schulz,
Die nationalsozialistische Machtergreifung
(1962) 24.

5.
Lerner,
The Nazi Elite
(1951), 53 ff.; H. Winkler,
Demokratie und Nationalsozialismus
(1972); Winkler, “Extremismus der Mitte?” (1972).

6.
In point 24 of the NSDAP program of February 24, 1920, it says merely: “In order to carry out all this [i.e., this program], we demand the creation of a strong central power of the Reich.” That was a demand that echoed many similar demands made around this time. Nazi
law
allowed indirect conclusions about the Führer’s absolute power, which are explained by the following examples. The position of the chancellor was defined in arts. 55 and 56 of the WRV, according to which he held the chairmanship of the Reich government and determined the broad lines of policy; the so-called Enabling Act of March 24, 1933 (
RGBl
. I 141), contained the empowerment of the Reich government to pass laws at divergence with the processes laid down in the constitution. Secs. 1, 8 of the Law to Secure the Unity of Party and State of December 1, 1933 (
RGBl
. I 1016), stipulated that the NSDAP as “the bearer of the ideal of the German state [was] inseparably bound up with the state” and that the chancellor as leader of the NSDAP decreed the detailed executive orders. The Law on the Head of State of the German Reich of August 1, 1934 (
RGBl
. I 747), united the office of the Reich president with that of the chancellor, handing over its powers “to the Führer and Reich Chancellor Adolf Hitler.”

7.
Bracher,
Zeitgeschichtliche Kontroversen
(1976), 28, 39, 53 f.

8.
Goldhagen, “Weltanschauung und Erlösung” (1976), 381.

9.
The new Führer idea, for example, promised not a solution to, but “deliverance” from, all the “evils” of democracy, in particular the squabbling of the parties. In place of the political will there was the “unshakable” will or “unshakable determination.” One no longer spoke of Germany’s importance but of its “greatness,” no more of long-term but of “eternal” goals. Political opponents became “enemies” or “traitors”; those out of favor were not excluded but “eliminated”; in this way the political was replaced by the “heroic,” social development by “destiny”; instead of the traditional concepts of state, justice, and politics, there were mystic surrogates such as Führer, national community, greatness, and so forth. For more details, cf. Kirn,
Verfassungsumsturz oder Rechtskontinuität
(1972), 34 ff.; Fraenkel,
Der Doppelstaat
(1974), 153 ff., 201 f.; Goldhagen, “Weltanschauung und Erlösung,” 379 ff.

10.
Cf. von Bayer-Katte, “Das Verlockende im nationalsozialistischen Führerprinzip” (1963).

11.
The attitude of nationalist circles toward Versailles, Weimar, and the NSDAP is exemplified by the speech of then parliamentary deputy Fritz Schäffer of the Bavarian People’s Party to the 150th session of the Bavarian Provincial Diet (
Landtag
) on November 21, 1922 (
Stenographischer Bericht über die Verhandlungen des Bayerischen Landtages
, 7:175 ff., 177, 180 f.), in which he said:

We stand today dishonored by the Versailles peace treaty … Bavaria is the only German
Land
that shows that it can manage without socialists…. The government could win the favor [also of those circles;] it is a question of the language used: “the wicked, wicked National Socialists!” … We have no cause to feel particularly pleased about the National Socialist Party. That we admit. Nor do we enjoy the favor of the National Socialist Party … [a shout from the seats of the Unified Social Democratic Party]. My dear Mr. Heckler, even if you think I enjoy the particular favor of the National Socialists, I can tell you that that isn’t nearly as vexacious as would be the favor of the other side [laugher in the center and on the right]. We certainly also have our doubts about the National Socialist Movement…. Perhaps many of the goals of this Movement are unclear—like the juice of the grape when it is fermenting…. But therein lies a certain danger; for this Movement also appeals to the warm patriotic feelings of our young people, to the longing of our youth for liberating action. And that awakens … a good feeling that attracts many thousands … who are striving for what is good and honorable. Yet, precisely because the objectives are so unclear … there is also the danger that, in certain circumstances, sections of our youth will be led toward goals that, were they to stop and think, they would not want. Of the objectives set out in the party program as it stands there are many we cannot condone, as we cannot condone the Social Democrats’ Erfurt program, from which—by the way—they have been lifted…. But for all that we must endeavor to judge such a movement calmly and fairly. That is why we wish the National Socialist Movement would place more emphasis on that which alone can preserve and keep alive the spirit of duty, also duty toward the Fatherland. That is the moral weltanschauung, the moral idea.

12.
See, for example, the description of the Führer in Freyer,
Der Staat
, sec. 8, “Der Führer und sein Volk,” 113 f.: “But as with all creative people, when the work in hand demands, the Führer seems to have at his command—as though by a miracle, without teaching or practice—all the ideas and tricks, all the skills and arts, an unwavering certainty about the way ahead, an irresistible effect on people, inexhaustible powers of resistance, and a prophetic eye for the essential.”

13.
Herrfahrdt, “Politische Verfassungslehre,” 107 n. 2; cf. also A. Koettgen, “Die Gesetzmässigkeit der Verwaltung im Führerstaat,”
RVerwBl
. (1936): 457 ff.