"Non-Germans" Under the Third Reich (6 page)

Therefore, although in a formal sense the absolute Führer principle was firmly anchored in the laws governing the Civil Service (unconditional obedience on the part of the Civil Service) and the administration remained largely shut out from “access to the man in power,”
¹⁵
in practice this only served to strengthen the administrative apparatus; indeed, even the traditional principles of administrative action could be maintained, although in theory these principles had been annulled by the exclusive validity of the Führer decree or the will of the Führer.

One further factor deserves mention: externally, the Nazi seizure of power altered but little, either in the structure or in the legal system to which the administration and the judiciary were bound. Here, too, tradition, customary methods of legal interpretation, and the conventional set of standards managed to hold their ground.

The system of abstract terminology that had developed out of judicial positivism, the various techniques of interpretation and subsumption, the methods of civil law scholarship devised for filtering life circumstances until they could be subsumed under a few general terms, all favored the implementation of National Socialist goals to a degree that not even the new leadership could have anticipated. Since, until then, positive legislation was equated with binding law, and (overpositive/superpositive) legal principles were either not recognized at all or not acknowledged as binding, from the judicial standpoint it was also legitimate for the National Socialist legislature to annul previous fundamental standards by means of simple law (amendment to or breach of the constitution) or, even more frequently, to retain the old standards and charge them with new meaning.
¹⁶
With this methodology, civil law scholarship was in a position to bring about a fundamental shift in the legal situation and, without altering the doctrines of legal practice, deliver the required results.
¹⁷
The dominant legal thinking, which began its triumphal march in the fields of jurisprudence and public awareness under the banner of the “concrete philosophy of order” (using C. Schmitt’s phrase),
¹⁸
viewed the established legal standards as “interchangeable terminological husks” that could be made to absorb any and all social and political circumstances and value scales
¹⁹
and thus were open to the unrestrained influx of National Socialist ideology.
²⁰
Since this meant that, according to prevailing thought, the principles of (state) law (legal guarantees and justice) were only functional terms without fixed meaning, the National Socialist state acquired, as leading National Socialist jurists were well aware, an “unheard-of liberty” in which “to realize” “its
völkisch
aims” (W. Best’s terms). The fact that this
required no changes
in the established legal system but only the setting forth of new definitions of meaning and revised guidelines (which were superimposed on the preexisting system of standards and so became binding immediately), has until now not been recognized in all its implications for the discussion of the problem of continuity in the Nazi period.
²¹

The adaptability of the traditional legal apparatus was, moreover, considerably increased by the effective way in which the regime was able to appeal to the loyalty and collaboration of traditional leadership circles (bureaucracy, judiciary, and leaders of the army and industry).
²²
The result, despite the fact that the nebulous ideas of National Socialism were totally opposed to the deliberately clear and orderly thinking of the judiciary and the Civil Service, was the evolution of a peculiar collusion between the administration and the new revolutionary powers, in which cause and effect became confused and can now hardly be distinguished.

Once the basic premises of the regime were accepted as given, therefore, the high degree of adaptiveness of the administration contributed greatly to the successful realization of Nazi aims, despite all jurisdictional competition, conflict, and antagonism between the traditional order and the new political system. Hitler himself, although extremely antipathetic to the bureaucracy, boasted in a private conversation that “without this … vast array of good collaborators … he [would] not have come as far in his political work as was actually the case.”
²³
The National Socialist program was implemented thoroughly when the administration, with its high degree of efficiency and organization, identified with this program. Consequently, the decisive conflicts between bureaucracy and the new emergency powers do not break out until near the end of the totalitarian regime; but the roots of that regime were formed in the day-to-day work of the administration.
²⁴
For it was not until the later war years, as we shall demonstrate, that the methodical adaptiveness of the established administrative and legal systems broke down under the demands of the regime,
²⁵
when the war and the nature of tasks such as political repression and mass annihilation operations began to demand “nonbureaucratic action.”

From the administration’s ambivalent position toward the requirements of the political leadership, we may draw various conclusions. The relationship between the bureaucratic administration and National Socialist claims to power in many respects shows a high degree of congruence between political aims and their fulfillment; in others, however, there is a major discrepancy between political demands and actual performance. Individuals loyal to the constitution were found side by side with those who collaborated with a system that was as a whole corrupt.
²⁶
Thus, the relationship between the administration and political power can be summed up neither as arbitrary execution of political aims nor under the heading of total confrontation. Rather, on the one hand it represents a dense web of conformity, coordination, and collaboration, and on the other hand one can observe numerous areas and phases marked by contrary tendencies, the undermining of jurisdictions, power struggles among rivals, and finally, too, many zones in which representatives of the administration abstained or actively resisted (bureaucratic sabotage). Overall, this relationship may perhaps best be characterized as compounded of collaboration and antagonism (referred to at the time as “Nazi contact sports”),
²⁷
of traditional order and extraordinary revolutionary phenomena, of established jurisdictions and the extralegislative powers of the Führer. The fate of law and administration in the Third Reich was shaped not only by power struggles with the new regime but also, and perhaps even more, by long periods of close cooperation.

The fundamental question, therefore, is how the traditional administrative and legal system took up and dealt, case by case, with the National Socialist claim to power, which differed from anything previously experienced in the radical nature of its aims and demands and whose implementation in practice seemed at first impossible. But the traditional administration was also capable of integrating the “impossible” into its structure and praxis,
²⁸
either implementing it by dint of excessive zeal and conformism or preventing it by delaying or not carrying out directives (bureaucratic sabotage).

The method most suited to apprehending this process of the integration of political aims is “system-immanent,” that is, a phenomenological point of view that, starting with the aims announced by the Nazi leadership, examines how their implementation was represented from within, that is, from the standpoint of the
self-conception
of the time.
²⁹

Such a point of view, which the German Federal Constitutional Court has also followed in its earlier decision on the law subsequent to article 131 of the Basic Law and in the so-called Gestapo decision,
³⁰
avoids the mistake of producing a commentary according to today’s constitutional standards, which are themselves plainly a product of historical experience with the Nazi state. The point of departure for this study is therefore the structure of the legal situation of the period as expressed in written law; the individual regulations that defined the legal relationship of the individual to the state and their interpretation by judiciary and administration; and legal theory, both political and constitutional, as it was then represented by jurisprudence and put into practice under contemporary constitutional conditions.

Thus, if one regards the implementation of Nazi aims according to the standards of the time, it is plain that what seemed monstrous and new about National Socialist ideas loses some of its surreal quality when translated into the language of law or rendered into administrative practice; a process of functional “alienation” and abstraction obscures the original point of departure.

What also follows from such a system-immanent point of view is that, within this historical framework, the conflicts and antagonisms among the various powers within the Nazi state are presupposed and treated as
given
variables. Therefore, for the purposes of this study, it is generally of secondary significance whether the ideas of the political leadership were carried out by the administration in the course of the normal execution of duty or only after protracted confrontations with the political powers of the time (Party, SS, and police). Of sole importance here is whether and in some cases
how
the political ideas were at last put into practice. Such conflicts will be treated in more detail only to the extent that they were of fundamental importance and resulted in revolutionary changes in the practice of law and administration.

A study of this kind is, admittedly, fraught with serious difficulties. Since Nazism did not produce a comprehensive theory, it would appear that a discussion within the scholarly framework, such as is common for “normal” theories or doctrinal edifices, is hardly possible; it is particularly difficult for the student sifting through National Socialist literature to filter out from the murky statements of the Nazi jurists or the quite insubstantial discussions within the field of jurisprudence anything concrete enough to be conveyed as a juridical system.

In addition, the present-day student of these issues is constantly confronted with the question of how the muddled ideology of National Socialism was so easily introduced into a system of jurisprudence that was, until 1933, an advocate of liberal constitutional principles. One answer could well be found in the recognition that the influence of National Socialist literature and legal thinking has to date been greatly underestimated,
³¹
because from a “purely academic” point of view, it has not been taken seriously. The present-day critique of this legal thinking, however, must not lead one to overlook the fact that it once enjoyed the positive endorsement of the prevailing school of jurisprudence in Germany and that the interpretation of the law as a whole took its cue from this legal thinking. Despite its irrationality, inconsistency, and absurdities, this thinking was of necessity the background before which all public statements or academic disputes took place. One must ever be cognizant that the statements on the part of Nazi jurisprudence, just as with present-day judicial theories, were propagated via academic literature and were, in addition, deemed official guidelines for legal practice.
³²
It is not so much that “the” legal scholars or judges were National Socialists but that a knowledge of National Socialist literature was the ideological framework within which all further judicial developments occurred. Nazi literature, therefore, had to have been absorbed and integrated into the universities, the judiciary, and the administration; otherwise, the dogmas and judicial rulings discussed in the present work could never have come into being.

An example of such integration is the surprising unity of the prescriptive language; in rulings and essays, the same turns of phrase occur over and over again. It is the vocabulary of conservative jurists with a largely German Nationalist mindset, drafted into service by the National Socialists and retooled for their own purposes.
³³

2. Structural Elements

In order to portray the process by which the radical demands of National Socialism were integrated into the technical functionality and rationality of the established apparatus and judicial praxis, it would seem expedient to trace the evolution of this process and the various stages by which it took its course. Taking the large view, it consisted in the establishment of generalized guidelines (derived from the maxims of Nazism) for judicial and administrative procedure that were set forth in generally binding regulations (laws, decrees of the Führer) and carried out by the administration and the judiciary. These guidelines, which are discussed in extenso, must be seen as the framework, as the guiding light according to which the standards were set and the policies executed. They represent structural elements, organizational schemata, which will provide the key to an understanding of the nature and position of judiciary and bureaucratic administration under the Nazi rule.

Therefore, the initial question must be, What were the legal and administrative principles of the Nazi state? or, better, Cannot its numerous totalitarian phenomena be traced back to certain basic elements? Let me anticipate the answer here as a premise. There were essentially three principles that were held to be axiomatic for the entire field of administration as well as the judiciary: the principle of absolute rule by a leader (the Führer principle), the principle of the authority of the Party over the state, and the influence of race as the fundamental principle guiding affairs of state (“racial inequality”).