The Law Under the Swastika (21 page)

The break with liberal administrative law in scholarship and the Nazi state’s claim to unlimited authority also moved administrative planning to the fore.
⁵⁴
Job creation and rearmament, access to raw materials, and the fundamentals of food supply
(Reichsnährstand)
, as well as the management of supplies and production in wartime, made the plan into the most important instrument of the Nazi leadership: “The Führer plans, the administrative apparatus implements the plan.”
⁵⁵
Concerns about a “planned economy” on the Soviet model that are so common in the literature of the period were intended, on one level, to ward off tendencies of a “German socialism” in that direction.
⁵⁶
At the same time they also reflected reality: The type of planning preferred in the National Socialist state was a form of guidance and control,
⁵⁷
but it did not infringe upon private property. To that extent it was relatively easy for postwar thinking about administrative law to quietly integrate the preliminary work that had been done under National Socialism on the legal concept of the “plan.”
⁵⁸

In the stage that the discussion over administrative law had reached by the end of the Nazi system—marked, for instance, by the third edition of Arnold Köttgen’s
Deutsche Verwaltung
(German administration [1944])—the question about legal form, having become unimportant,
receded into the background. The legal form proved to be arbitrary and interchangeable. And since it was no longer tied to a liberal conception of the state and legal protection, it no longer served any function. Instead, administrative purposes moved to the fore: They shaped the development of the system, and it appeared they might be able to become the new starting point for an anti-individualist theory of administrative law. The classic administrative purpose of intervention to ward off danger and organize things was now joined by notions of guidance and service. Later, under entirely transformed circumstances, Peter Badura picked up the thread of this fundamental reorientation of administration: “A consistent replacement of the systems-idea of the liberal constitutional state by that of the social constitutional state would have to develop the theory of administration on the basis of administrative purposes that cannot be reduced further: warding off danger, levying taxes, providing services and guidance.”
⁵⁹

Finally, the retreat of legal form and legal protection in the Nazi state also devalued the theoretical intellectual accomplishment of the liberal doctrine of administrative law. The original impulse to develop a general part of administrative law (meaning its more abstract norms) came from the idea of a uniform, predictable, and controllable exercise of executive power. Where the “well-ordered constitutional state” (in the phrase of O. Mayer) was dissolving, the general part had no function.
⁶⁰
This strengthened the tendency to seek footholds in specific areas and to establish some kind of order. That is why Carl Schmitt’s notion of “concrete orders” and the “concrete ordering and formative thinking” they entailed was so successful.
⁶¹
It legitimated the development of special, purpose-oriented spheres of power (army, SA, SS, enterprises, professional structures, labor service, special administrations). It supported the tendency toward the breaking of general, abstract rules—in fact, it endowed this process with a philosophical aura derived from Hegel. To be sure, it is possible to interpret this institutional “thinking in terms of order” as an attempt to counteract a totally disorderly decisionmaking process;
⁶²
however, “will” and “formative act” remained decisive with regard to institutional and normative bonds and obligations. In the end, all outlines of orders drafted by theorists of administrative law and their attempts to oppose in writing the emerging chaos of competing fragments of administration were futile. All reflections on the relationship between administration and party, on professional ordering structures, on general and special administrations were several steps behind reality. Stable conditions could now be achieved only locally and for brief periods. The passage of time
revealed that attempts at establishing a legal order were as futile in administrative law as they were in constitutional law.

Textbooks of Administrative Law

IV.
Textbooks, too, reflect clearly how unstable and internally unsettled the overall situation of administrative law was. The attempts to force this fluid element into a “system” were not very promising: on the one hand, because the flood of legislation was unsystematic and guided not by ordering principles but by the prevailing rivalries and power struggles within the regime;
⁶³
on the other, because administrative law in general had been devalued by being politicized and eliminated from professional training.
⁶⁴
As the newly installed President of the Reich Administrative Court put it, “the less administrative law, the more room for the art of administration.”
⁶⁵

Authors of textbooks of administrative law found very different ways to come to terms with the flood of norms and the politicization and degradation of administrative law. A few specialists in administrative law in Württemberg and Bavaria (Ludwig von Köhler, Wilhelm Hofacker, R. Nebinger, E. von Scheurl, Wilhelm Laforet, and others) merely covered the traditional stock of liberal administrative law with a verbal whitewash. They occasionally quoted
Mein Kampf
and avoided sensitive issues, such as the dualism of state and party. A good example of this approach is Ludwig von Köhler’s
Grundlehren des Deutschen Verwaltungsrechts
(Principles of German administrative law [1935]).
⁶⁶
He openly said that he was reluctant to change at his age and retained everything that the activists of Nazi administrative law rejected: the constitutional state in the liberal sense, subjective-public right and an independent administrative jurisdiction, the separation of powers, and the fundamental division between state and society.

Wilhelm Laforet took a similar approach in his textbook
Deutsches Verwaltungsrecht
(German administrative law [1937]).
⁶⁷
He, too, retained the dichotomy of public and private law, the separation of powers (though now reduced to the organizational level), and the postulates of the
Rechtsstaat
and legal security. His rejection of subjective-public right seems superficial, as do the emphatically neutral passages on the “movement” and the “party.” Both books thus outline the positions of conservative liberals who wanted a state that was strong but that acted within legal forms and who expected civil servants to adhere to the law and have a neutral “orientation toward the common good.”
⁶⁸

A late example of an account that was at its core committed to traditional administrative law is Bodo Dennewitz’s
Verwaltung und Verwaltungsrecht
(Administration and administrative law [1944]).
⁶⁹
Only its title tried to accommodate the renaming, in 1935, of administrative law as administration; between the covers it was a pure textbook of administrative law. Dennewitz openly drew on Otto Mayer’s work, and he maintained the separation between public and private law, the “technical organizational separation of powers,” and the concept of subjective-public right. Though he adhered to the general doctrine of the binding character of National Socialist
Weltanschauung
through the interpretation of vague legal concepts and general clauses, he emphasized the technical functioning of administration over its ideological task. He himself noted a clear influence of praxis.
⁷⁰

In looking at these textbooks and outlines, however, we have only touched on the outer circle of books, which did not have much influence and cannot be considered as representative of National Socialist administrative law. The same goes for the study aids and manuals of administrative law.
⁷¹
We will not examine them here, but their influence on the broad mass of jurists should not be underestimated, because they offered the catchwords familiar to every jurist at the time in a form that was thoroughly adapted to public speech.

The inner circle of textbooks on administrative law was made up of the works of Koellreutter and Maunz, the volume edited by Frank, and the textbook by Köttgen. Koellreutter’s book could have become the leading work after 1933, owing to the author’s standing, but that did not happen.
⁷²
When he wrote it, Koellreutter was without a doubt still a “follower” of the Nazis, loyal to the party line, and he tried to do justice to its claim of leadership with forceful phrases: “Administration is action
(Tat)
”
⁷³
and “right goes before law.”
⁷⁴
Koellreutter’s thinking was characterized by an orientation toward the politically defined communal purpose, a relativization of the boundary between public law and private law, the elevation of “common good before self-interest” to a source of law and a corrective of the legal order, and the proclaimed end of subjective-public right. The foundations of liberal administrative law visible beneath these notions were no longer sufficient to give Koellreutter’s “national
Rechtsstaat
” any firm contours. They were not strong enough to resist the party’s claim to unlimited authority. Only a few years later Koellreutter realized that the formula of the “national
Rechtsstaat
” was hardly more than the expression of self-deception by National Socialist jurists who had hoped to combine their political activism with the tradition of the
Rechtsstaat
they were familiar with.

Theodor Maunz’s 1937 textbook
Verwaltung
(Administration) leads us into the heart of National Socialist administrative law.
⁷⁵
His transformation
from a positivist administrative jurist before 1933 to a champion of a “new administrative law” oriented toward “the Führer-idea, community, and national subordination” had been swift. Without being a student of Carl Schmitt, he immediately fell under the spell of “concrete order thinking” and proclaimed in numerous publications the end of subjective-public right, of the binding force of the law, and of the concept of the corporate body—in short, the end of all individualist liberal administrative law.
⁷⁶
The task now was to “clear away” the “rubble” of that law. Maunz played a leading role in this process. He secured for “National Socialist thinking the scholarly starting positions of German administrative law”
⁷⁷
and eventually “cast administrative law as such into doubt.”
⁷⁸
His textbook began by defining the new concept of administration as “the shaping of communal life by the work of agencies and special offices in accord with a plan devised by the Führer of the community in a given situation.”
⁷⁹
He then sketched the “bourgeois-constitutional administrative law” that needed to be overcome. Having prepared the ground, he went on to describe the organization of administration (state, party, and local government), its concrete activities (administrative acts and the administration of justice, the latter as part of administration, as well as police and administrative liability), and finally its instruments (officials, public property, eminent domain, coercion, and punishment). Within this self-contained concept, the book was really an outline, more committed to the grand perspective than to details, more interested in the new ideological orientation than in conveying information; the last point, incidentally, was also the opinion of reviewers at the time.
⁸⁰

In this sense Maunz worked also as a trendsetter for the official party anthology
Deutsches Verwaltungsrecht
(German administrative law [1937]), edited by Hans Frank, to which he contributed two introductory articles.
⁸¹
This anthology mirrored the divergent trends within the system. While one contributor, Höhn, declared administrative jurisdiction outmoded, others, such as Justus Danckwerts, defended it halfheartedly “for the time being”; while some, like Frick, advocated the unity of leadership and state power, others made a pointed distinction between leadership and administration, often doing so for a variety of reasons (to reduce the influence of the party or, as in Höhn’s case, precisely to liberate leadership from bureaucratic impediments). Similar tensions can be made out in the effort to fix the place of self-government and to limit police tasks.
⁸²
Deutsches Verwaltungsrecht
vacillated between martial noise and internal uncertainty about how to go on, and it had a transitional character between traditional elements and a still nebulous “communal law.” Its mixed panel included distinguished
contributors who were more bourgeois–German National than National Socialist in their thinking, alongside SS jurists, such as Höhn and Werner Best. It was thus a particularly typical creation of those years. During a phase of consolidation by the regime, it marked a pause before the coming radicalization.

Probably the best contribution qualitatively to the textbook literature on administrative law under National Socialism was Arnold Köttgen’s
Deutsche Verwaltung
(German administration [1936]).
⁸³
He tried emphatically to “include administrative reality”
⁸⁴
and at the same time to grasp administration and administrative law theoretically above the stream of continual changes to the law. This freed him of the need to engage in dogmatic discussions and give an account of the current legal situation in the various fields. Köttgen’s work, particularly in its revised third edition of 1944,
⁸⁵
was one of the last attempts to defend rationality and the administration’s subordination to the law, to defend administrative law as an “ordering system” against the chaos of a disorderly exercise of power. It is a prime example of how defensive positions could be constructed by taking advantage of the smallest maneuvering room for argument and using unassailable National Socialist vocabulary.
⁸⁶
At the same time, however, Köttgen’s book shows that this was not necessarily tantamount to a return to the administrative law doctrine of the Weimar period. Köttgen had departed from that doctrine by familiarizing himself thoroughly with administrative reality and by expanding his perspective—clearly in correlation with Forsthoff—to embrace the new tasks of administration. To that extent one can say that he “made a significant contribution to overcoming administrative law positivism,”
⁸⁷
while at the same time employing downright positivist arguments with regard to “an administration that was becoming totalitarian”
⁸⁸
with the intent of slowing down the pace of change.