"Non-Germans" Under the Third Reich (22 page)

This underclass, lacking legal protection and defrauded of any and all material possessions, was now seized upon and slowly prepared to be the object of forced emigration and later “resettlement” (deportation to the East).
¹¹
Preparations for resettlement were facilitated by a fourth set of measures, which henceforth, and in the full light of public view, excluded the Jews from the community of law and from social life of any kind. These included distinguishing marks (the Star of David), special names, prohibitions on residence in designated areas, and bans on the use of public transportation. Thus restricted to their places of residence, the Jews were kept under constant police surveillance, so that, when the day came for them to be resettled, they had only to be served with the necessary orders. In sum, these four phases, despite all misadventures and arbitrary acts involved in their implementation, still reveal a quite astonishing “object-oriented” methodicalness and logic, in the form, as it were, of a sequential scale.
¹²
Moreover, this was not merely good for the purposes of deprivation of legal rights by judicial means but, objectively speaking, led directly to the “Final Solution,”
¹³
regardless of whether it was called expulsion from economic and social life, emigration, or resettlement.

To be sure, as already observed in the introduction, this sequential scale will not be followed chronologically here—for such treatment the reader may have recourse to the chronicles already available
¹⁴
—but rather according to special subjects (jurisdictions), in order to provide a better foundation for our thesis concerning the orderliness and uniformity of the process of legal disfranchisement. According to the relevant official plans and orders of business, these special subjects (the Civil Service Code, regulations governing citizenship and public health, laws concerning professional accreditation, etc.) for the most part fall under the purview of the inner administration by virtue of their essential nature.
¹⁵
For reasons of material coherence and objective comparison, the professional code of the attorneys-at-law, although actually under the jurisdiction of the Reich Ministry of Justice, is discussed in the same section as the laws of professional accreditation. Moreover, the jurisdiction of the inner (general) administration over the special topics to be discussed was also given from a superordinate point of view: the Reich Ministry of the Interior (Department 1, Groups 5 and 6, and Department 4)
¹⁶
was
generally
responsible for “race laws and race policy” (particularly for the so-called Jewish questions) and was therefore, according to the intent of the Combined Rules of Procedure for the Reich ministries, the “participating” supreme Reich authority, even with regard to anti-Jewish measures in areas that belonged to the portfolios of other departments. The following (unfortunately cursory)
¹⁷
discussion of special law regarding race under the aspects of proprietary, commercial, and labor law and in the cultural field is therefore justified not only on grounds of the objective correlation but even according to the distribution of jurisdictions then in force.

These forms of “participation” by the Reich Ministry of the Interior in the promulgation of race-specific special law in matters that did not belong to its departmental brief were of various kinds. In all Reich laws involving special provisions (for instance, the Law on Admission to the Legal Profession and the Law Altering the Industrial Code, both dated April 7, 1933),
¹⁸
the Reich Ministry of the Interior, as the “model authority” in all questions of race, was the “participating supreme Reich authority,” as mentioned above. Its agreement was necessary for the drafting of any pertinent regulations.
¹⁹
To a certain extent, however, the Reich Ministry of the Interior could also promulgate regulations in areas that did not belong to its portfolio per se, because it had by law certain general powers. Some examples would be the Reich minister of the interior’s Third Decree to the Reich Citizenship Law of June 14, 1938 (definition of the term
Jewish commercial enterprise
), and the Thirteenth Decree to the Reich Citizenship Law dated July 1, 1943,
²⁰
according to which “punishable offenses committed by Jews [would] in future be punished by the police,” since the Reich minister of the interior was empowered by section 3 of the law to promulgate any “legal and administrative rules necessary for the implementation and completion of the law.”

The Reich Ministry of the Interior was more or less forcefully engaged in drafting the special regulations in commercial and proprietary law as well. For example, the Decree on the Registration of Jewish Property dated April 26, 1938,
²¹
was issued
jointly
by Göring in his capacity as the plenipotentiary for the Four Year Plan and the Reich minister of the interior. But the decree of November 12, 1938, eliminating the Jews from German commercial life,
²²
was issued by the plenipotentiary for the Four Year Plan without formal participation by other Reich authorities.
²³
The Decree on the Utilization of Jewish Property dated December 3, 1938,
²⁴
was adopted by the Reich minister of the economy “
in agreement
with the participating Reich ministers,” that is, with the agreement of the Reich minister of the interior also.
²⁵
Similarly, the Decree on the Employment of Jews dated October 3, 1941,
²⁶
was issued by the plenipotentiary for the Four Year Plan (not by the Reich minister of labor) on the basis of the powers granted him under the decree of October 18, 1936;
²⁷
the Reich minister of labor was empowered merely to draft implementing regulations in agreement with the Reich minister of the interior and the Party Chancellery, which later were issued in the form of a corresponding implementing order dated October 31, 1941,
²⁸
in agreement with the aforementioned offices.

In delineating the above-named special subjects, admittedly, it must be borne in mind that no general statements are possible regarding the implementation of measures of special law in individual cases. There is an almost total lack of court decisions that would provide insight into contemporary circumstances. For, as explained in the introduction, the extent of supervision over executive acts by administrative courts in the Third Reich was hardly worthy of mention. The reasons were as follows.

Either there was simply no provision for legal remedies against such measures, since in the Third Reich, too, the principle of enumeration, adopted from the Weimar period, was still formally in effect and, of course, did not provide legal recourse against such measures; or else the affected persons did not dare to appeal (this would most likely not have achieved the desired result anyway), since such measures commonly were viewed as political acts that, on the grounds of the unwritten reservation that political acts of state were not subject to review,
²⁹
were seen as being not actionable. Finally, court decisions, even if they had sided with Jewish complainants, would hardly have been published to any significant extent, since this would have been in stark opposition to political objectives. A more precise picture could only be gained by means of individual studies using local archives, such as have been undertaken from time to time.
³⁰

For a study of the judicial practice in regard to “non-German” persons under constitutional law, therefore, only a few court rulings from the area of general police law and commercial law published in the juridical literature can be adduced, and almost all of them rejected the suits of the Jews involved. Hence the following discussion must concentrate primarily on the depiction of the legal situation according to the relevant norms and administrative guidelines.

II. Civil Service Law

The first set of measures under special law affected the restructuring of the Civil Service. The primary concern of the political leadership was certainly the reliability of the public officials, since it could be taken for granted “that from a purely superficial viewpoint, the task of a victorious revolution consists in creating an apparatus that carries out its functions in the service of revolutionary ideas.”
¹

Accordingly, the Civil Service was subjected to a profound reorganization under public law. As noted in the so-called Civil Service ruling handed down by the German Federal Constitutional Court on December 17, 1953, the relationship of the civil servant to the state was transformed, in accordance with the Führer principle, from a politically neutral and impartial service committed to the public interest into a leader-follower relationship.
²
The new terms of service had nothing whatever to do with the conventional notion of the professional Civil Service: they were exclusively dependent upon the Führer; the previously secure legal position of the civil servant was abolished, as the rulings handed down by the disciplinary courts show. The civil servant no longer swore to uphold the constitution, instead pledging fealty to Führer and Reich. To the Führer he owed “fidelity unto death.”
³
Every theorist of constitutional law between the years 1933 and 1945 agreed that the civil servant thus became “the instrument of the Führer’s will” and that the previous neutrality of the Civil Service had been “utterly destroyed.”
⁴
The “obligation to political fidelity,” that is, the duty to act at all times on behalf of National Socialism, as well as unconditional obedience to the Führer, were requirements for public office
⁵
and were affirmed by the civil servants themselves “to a considerable degree” as being essential legal duties incumbent upon anyone enjoying the status of civil servant.
⁶

Because the great majority of civil servants leaned toward nationalistic and conservative ideas, particularly in the higher echelons, there was actually little need, as we have already observed, of extensive personnel purges; the traditional loyalty of the civil servant, oriented as it was to the state per se, made rebellion of any kind appear impossible. The Civil Service had, from the tradition of non-partisanship and neutrality, always regarded the Weimar Republic with distrust, or at least with reserve, and, even before 1933, had worked for a “monocratic administrative state in place of pluralistic democracy.”
⁷
This attitude among the leading elements of the Civil Service was of major benefit to the National Socialist regime. Already in 1933 the literature contained quasi-mystical calls for training civil servants to be priests of the state and its worldview.
⁸
To this extent, the old state apparatus, taken as a whole, could be retained almost intact, or at least with no noticeable disruption.
⁹
What was required was merely the removal of politically and racially undesirable members of the public service; otherwise everything remained as it had always been.

This goal was single-mindedly tackled immediately following the coup d’état using the proven method: individual actions followed by legal codification. As early as February and March of 1933, extensive purges were carried out in the administration and the courts, in part involving violations of principles of Civil Service law, in part even by violent means.
¹⁰
In the Prussian judicial administration in particular, in which anti-Semitism was present to a greater degree than in other administrative departments, Jewish judges and civil servants were ousted even before legal regulations could be issued.
¹¹
On March 31, 1933, one week before promulgation of the so-called Professional Civil Service Code, the National Socialist commissar for Prussian justice and later Prussian minister of justice, Hans Kerrl, who was also a SA
Gruppenführer
and a former
Justizoberrentmeister
(a low-grade civil servant in the administration of justice).
¹²
directed that Jewish judges be urged to “immediately hand in their requests for leave”; otherwise they were to be denied entry to the court building; Jewish public prosecutors as well as Jewish prison officials were suspended from office.
¹³

1. The Law for the Restoration of the Professional Civil Service, April 7, 1933

The legalization of these illegal acts was then set in motion by means of the Law for the Restoration of the Professional Civil Service dated April 7, 1933,
¹⁴
which can be viewed as a kind of preparation, in the personnel sector, for the institutional merging of state and Party offices that later occurred.
¹⁵
The law, which was no ad hoc effort but rather one for which the groundwork had been carefully laid with extensive preliminary work long before the Nazi seizure of power,
¹⁶
was designed to “restore a nationalist and professional Civil Service and to simplify the administration” by regulating the dismissal and compulsory retirement of civil servants without regard to the laws then in force (sec. 1).
¹⁷
According to section 4 of this law, which was applied analogously to workers and employees in the public sector as well (sec. 15), “civil servants who, judging by their prior
activities
, could not be counted upon to uphold the National Socialist state without reserve” (emphasis mine) could be dismissed from office. Their entire political history, particularly since November 9, 1918, was adjudged to be relevant.
¹⁸
According to section 2 of the law, dismissal was
mandatory
in the case of those civil servants who had entered public service since November 9, 1918, without having the necessary qualifications or aptitude
¹⁹
for their respective careers. Section 5 of the Professional Civil Service Code permitted a civil servant to be transferred for reasons of “official necessity” to a different office or department at the same seniority level or its equivalent; according to section 6 of the law, it was permissible to pension off a civil servant “to simplify the administration or in the interests of the service,” even without proof that he was “unfit for service.”