"Non-Germans" Under the Third Reich (16 page)

This overwhelming silence in the literature may in part be explained by the recognition, current since the French Revolution, that the surrender of universal and general equality would necessarily lead to universal and general inequality (unabashed special law), and that this in turn could only result in violence and repression,
¹²⁸
ending ultimately in despotism, as (in Rousseau’s terms) the “final stage of inequality,” “the blind obedience of slaves.”
¹²⁹
And indeed, such “blind” obedience was the supreme dictate of the Nazi system, under which all civil servants, soldiers, and other “followers” or “vassals” owed “fidelity unto death” to the Führer.

In order to bring about such a condition of universal inequality, the fetters of universal equality had to be discarded as quickly as practicable. The German people, one may read in the literature, must be rescued from their powerlessness by rejecting and overcoming democracy of the kind favored by Rousseau.
¹³⁰
Once again, this break with the constitutional concept of equality was veiled and disguised behind a kind of modified doctrine of identity. Just as the
Volksgemeinschaft
found its highest fulfillment in the supreme Führer, the place vacated by the principle of equality was to be taken up by “philosophical/ideological concurrence in the will and desires of all comrades enjoying protection of the law” (which was also embodied in the person of the Führer); in this fashion, “even the idea of inequality, so intolerable to liberalism,” would lose “its terror.”
¹³¹
Völkisch
inequality thus gained general recognition as a necessary component of the prevailing legal order, dictated, as it were, by natural law.

With remarkable candor, even the highest members of the judiciary acknowledged this reduction in legal status on the grounds of racial policy. Whereas liberalism, for instance, granted civil rights even to the Jews, because it saw equality as a universal human right,
¹³²
the German Supreme Court had already distanced itself from this view in a relatively early ruling of 1936, by in effect repudiating the idea that people of foreign race could have legal personality and indeed negating their very humanity:

The earlier [“liberal”] idea of the legal meaning and content of the personality did not [make] any fundamental value judgments as to equality or dissimilarity of blood among the
beings with human visages
; it therefore rejected any legal classification and ranking or gradation of human beings according to racial criteria. In the National Socialist worldview, by contrast, it [was necessary] … to treat only those of German descent … as entitled to full legal status. This meant that fundamental distinctions in earlier laws pertaining to the rights of foreigners [were] revitalized, and ideas again adopted that in the past [had] recognized a distinction between persons of full legal capacity and persons
of lesser legal status
.
¹³³

The Reich Supreme Court here gave forthright expression to something that could be gleaned only indirectly from
völkisch
theoretical literature, namely, the actual substance of
völkisch
inequality. In general terms, it can be defined as being a status subject to different law, a
legally diminished
special position for “alien” persons. The judicial authority for this was supplied by the conception of
the political
, as developed by Schmitt and his school, according to which the constitutive feature of politics was the “philosophy” or “theory of concrete distinctions” between “friend” and “foe.” This thinking, which originated in the doctrine that there existed acts of government not subject to judicial review,
¹³⁴
as well as in the position of Germany after 1918 with respect to foreign policy and the law of nations,
¹³⁵
started from the assumption that the existence of an abstract “foe” was a necessary precondition for all state activity; whether or not this foe existed in reality was of absolutely no import. A lack of content to the foe concept was therefore not a disadvantage but rather the purest, most absolute realization of
the political
,
¹³⁶
since state power could thus remain flexible and the concept of the foe could be fleshed out at will with arbitrary meaning. From there it was only a small step to the equation of friend with “persons of the equal type” and foe with “alien”
¹³⁷
and another small step to the corollary establishment of special law, or even no law at all (lawlessness), for the “foe” of the “national community.”

Thus in 1933 it had already been determined that the “foe” stood outside the community, resulting in the demands that, “in execution of the distinction between friend and foe, all those should be weeded out” (that is, eliminated) who as “aliens and foes could no longer be tolerated.”
¹³⁸
Even the adherents of the “
völkisch
-vitalist” constitutional doctrine, who stood in opposition to this friend-foe dichotomy, came to the same conclusion. It was necessary, they said, to replace the equality clause in article 109, paragraph 1, of the Weimar Constitution by one that proclaimed “organic inequality”
¹³⁹
and to insist upon “frank recognition of the fact” that, because of the necessarily racial definition of the concept of the
Volk
, “inequalities within this
Volk
” were unavoidable.
¹⁴⁰
Such inequalities had far-reaching consequences: in an essay published in 1937, for instance, Hans Peter Ipsen expatiated upon the notion that “whoever … did not affirm it [the Nazi state] … had no place in German jurisprudence either.”
¹⁴¹
Later authors also affirm the idea of
völkisch
inequality, if in some cases circuitously, either by their support for the discriminatory practices of the administration, known at the time as “accepting reality,”
¹⁴²
or by arguing that every class of people had to be assigned its proper law.
¹⁴³
To some extent, also, the exclusion of “aliens” from the utilization of public facilities was deemed not so much a permissible “exception” as, quite simply, the “fulfillment of the National Socialist principle of equality.”
¹⁴⁴

There was, overall, a general agreement that “unequal treatment” of “aliens” was lawful and that it must “necessarily [result in] segregation of the alien elements from the German body politic, and their … differential treatment” in all areas of life, since equality between “racially identical and racially foreign persons [could] not be maintained in any essential social and legal relations.”
¹⁴⁵
The practical measures, too, as well as the race laws, such as those mandating the exclusion of Jews from public service, economic affairs, and culture (“absolute dissimilation”), were approved in more or less general terms.
¹⁴⁶
To some extent, too, it was frankly admitted that this “exclusion” of “aliens” from the community was the expression of “true meaningful equality” in the sense of
suum cuique
(to each his own);
¹⁴⁷
in part this “elimination” was also justified by saying that no breach of the equality principle (art. 109 of the Weimar Constitution) was involved, since the latter mandated equal treatment only for equal circumstances; and what “equal” meant was now to be left to the discretion of the guardians of the National Socialist worldview, according to which racial differences were the source of “unequal circumstances.”
¹⁴⁸
Thus, the principle of unequal treatment, or special law, becomes the (negative) central concept of National Socialist law. Be that as it may, however, the fact that this development had already been sketched out by earlier models was a decisive factor in the smooth manner in which
völkisch
inequality was integrated into the Nazi legal system.

The roots of this theory extend far back into the past. Demands for the suppression or neutralization of “aliens” (particularly Jews) from political, intellectual, and economic life were raised in quite specific form even before 1933 and especially after 1918 and were part of the established program of nationalist and
völkisch
circles (the All-German Federation and other organizations). There was no difference between these demands and those of the NSDAP; they had always insisted upon the same discriminatory policies that later were enshrined in and implemented by the Nuremberg Laws. The incorporation and adoption of the principle of discrimination in constitutional doctrine after 1933 was thus no innovation but merely the continuation of already existing anti-Semitic traditions and demands.

The only difference between the demands raised in the Weimar Republic and those of the “
völkisch
state” of the Nazis was that the principle of special law would now be put into legal practice. The specific result was the institution of an inferior legal status or exclusion from any legal status whatsoever. Here, too, attempts were made to disguise the true circumstances by means of empty slogans, which, in view of the overt discrimination practiced against racial and political minorities, could only bespeak a cynical, or at the very least, hypocritical policy. On January 30, 1934, in Berlin, Hitler himself declared that the racial idea did not lead to any “contempt for or lesser opinion of other peoples.” Similar arguments were used both in theory and in practice. The race laws “deliberately [refrained] from judging the superiority of one race over the others.”
¹⁴⁹
There was talk of “mutual respect” for “foreign nations, and peoples of different blood,”
¹⁵⁰
of “respect for the special quality of a people that is achieved by preserving the purity of the blood,”
¹⁵¹
of the necessity of “variations in type,”
¹⁵²
and so forth, in order to justify the unequal legal treatment of “non-German” persons: “That which is contested against for political reasons is not therefore evil or ugly or harmful, and above all, not unjust. The political act takes place merely in order to combat the inimical, or, in a positive sense, to preserve one’s own existence.”
¹⁵³

The commentators of the race laws in the Reich Ministry of the Interior also tried to take an “objective” view of the prescribed regimen of racial hatred. There was, they said, no scale of racial value but only “differences in kind.”
¹⁵⁴
They protested in all seriousness that
völkisch
inequality did not denote any enmity toward other nations and peoples;
¹⁵⁵
that special law directed against “people of foreign races” did not put them in an inferior position but merely emphasized “difference in kind,” a “healthy, free foreignness”;
¹⁵⁶
that segregation (of the Jews) was a “generous solution to the Jewish and
Mischling
[persons of mixed descent] problem”;
¹⁵⁷
and that it simultaneously provided for (their) legal protection.
¹⁵⁸

But all this was merely a meager pretense cloaking the fact that the principle of special law, where its application is determined arbitrarily by governmental fiat, always means a retreat from legality, and fundamentally it brooks no restraint, since, in a situation where state power is unlimited, one can always find “objective” necessities to justify its expansion. If the inviolability of law is valid only under set conditions, then the principle of law is no longer in force, for “inviolability with reservations is the opposite of fundamentally acknowledged inviolability.”
¹⁵⁹
Therefore, such remarks on the supposed “foreignness” of those who did not belong to the “national community” signified nothing less than their basic “antagonism” toward the German people; and, since antagonists naturally must be combated, it provided the foundation for placing them under special law. Thus, the literature of the later years contains statements frankly expressing the idea that “differences” in “kind” imply “inferiority” and that “foreignness” results in “hostility” (“the Jews are not only foreign to us but also our enemies”)
¹⁶⁰
—that is, to the extent that such negative concepts and images were not from the very outset already implicit in the words
difference in kind
.
¹⁶¹

Since this meant that the concept of the foreign was defined not legally but from a
völkisch
-racial standpoint, the concept of inequality was put beyond reach of any kind of legal delimitation and thus divested of any legitimate content whatsoever. The detailed structuring and implementation of the concept of special law was, it follows, a question not of
law
but of
political expediency
. This conclusion is expressed most plainly in an essay by the official legal adviser of the Gestapo, Werner Best, written in 1937. Best argued that the state indeed had to be free of all legal obligations. However, in his opinion this did not mean that any governmental actions ought to be executed without standards and at the discretion of individual representatives of state authority. Rather, in quite a number of areas it should be
expedient
for the state, of its own accord, to set forth precise standards for its future actions, to ensure that they will be predictable and that those affected will have the opportunity to act accordingly.
¹⁶²