The Law Under the Swastika (26 page)

1. The various administrative courts have received very different treatment from legal scholars. Naturally, the Prussian Administrative High Court has attracted the most attention. Its legal decisions during the Nazi period have been repeatedly discussed; Helmut R. Külz, in particular, has done so while carefully weighing its bright and dark sides.
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Within the remaining sphere of jurisdiction, and within the framework of what was possible for a court that was operating in public view, the Prussian Administrative High Court was in fact able to preserve constitutional positions to a remarkable degree. It did so by clinging steadfastly, sometimes even craftily, to positive law. For example, the court rebuked meaningless political justifications,
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determined after the fact that the banning of a paper had been illegal,
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invalidated the political objections to an organization’s statutes and articles,
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and confirmed the lawfulness of the granting of a peddler’s license.
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Another decision concerning gypsies culminated in sentences that are worth quoting: “As German citizens, gypsies are not subject to any special law. While they are subject to the general obligations of the law, they are also under the protection of the laws. Of course the police are entitled to counteract the particular threats that arise from the peculiar habits of gypsies and their nomadic lifestyle. However, they cannot chase them from place to place.”
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Frege has collected many other examples of the administration of
justice by the court.
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However, there are also cases where the court withdrew, with hardly any comment, from situations calling for uncomfortable decisions—for example, by invoking the changed legal situation or changed conception of the law. Only a few decisions have a decidedly National Socialist imprint.
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There are various explanations for this court’s relative ability to resist pressures from the National Socialists: the continuity in personnel that reached back to the pre–World War I period and is exemplified especially by its President, Bill Drews;
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the self-confidence of a court that was renowned precisely for its consistently liberal line;
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the recruitment of judges from within the traditional fields of law, which was hardly interfered with until 1941. These explanations interlink and supplement one another. The overall picture still lacks depth of focus, and we can only hope that an in-depth look at the court will improve this situation in the future.

2. The Administrative Court of Baden shows a similar course of development on a reduced scale. Christian Kirchberg’s thorough study has revealed its external and internal condition under National Socialism.
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Here, too, there was an old liberal tradition,
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continuity of personnel,
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and an attempt to preserve constitutionality as long as possible. As Kirchberg has pointed out, all this was compatible with an accommodation to the course set from higher up, “regardless of whether and to what extent it corresponded to prevailing (positive) law . . . The relevant judicature, whether to the benefit or disadvantage of those concerned, agrees precisely with the declared reasons of state at any given time.” Loyalty to the law played itself out in areas not threatened by politics.

After September 1939 the court practically ceased to function as an administrative court, as its presiding judge, Ph. I. Kohlmeier, attended above all to disciplinary matters relating to civil service law.

3. As of yet there is no comparable study of the Administrative Court of Württemberg under National Socialism.
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A look at its decisions available in print (in the
Reichsverwaltungsblatt
up to 1942) reveals hardly any peculiarities. We find echoes of the
Kirchenkampf
,
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conflicts over old real rights,
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compensation decisions in the traditional framework,
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and the continuation of older judicature concerning communal planning sovereignty, which the court maintained was not subject to judicial oversight.
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It is noticeable, however, that the Administrative Court of Württemberg voluntarily, in fact preventively, curtailed its powers of oversight, especially in Gestapo matters,
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and that it considered even preventive police measures against organizations possible on the basis of
the Reichstag Fire Decree.
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And while steadfast opposition to antireligious measures by the regime could be expected—given the court’s prior decisions—when the major churches were concerned, it was lacking when it came to smaller religious communities (Salvation Army, Christian Science, Catholic-Apostolic Community).
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4. The Administrative Court of Bavaria, too, shows an ambivalent picture, though a final assessment is still outstanding.
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Here, as elsewhere, we can observe the usual shrinking process in terms of personnel and jurisdiction. In 1939 the Führer-principle caused the assignment of business “to pass into the hands of the President,”
⁹⁷
though after the retirement of Staatsrat Dr. Schmelzle in 1939, there no longer was a President.

As with the other Administrative High Courts, the basic thrust of the administration of the law was positivist and constitutional, to the extent that the laws permitted and that an adherence to earlier decisions was possible: for instance, in the revoking of a license in case of scab labor.
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On questions concerning state church law, the Administrative Court adhered to traditional positions when the national churches were involved,
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but it had this to say about International Bible Students (former name of Jehovah’s Witnesses): “This way of thought and its dissemination are subversive, in form because it violates the prohibition of April 13, 1933, in content because it insults the state and the church, alienates nation and state, and renders services to the cause of pacifism, which is irreconcilably opposed to the heroic
Weltanschauung
of current political and national life.”
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The court kept out of conflicts within the Nazi party.
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One reason why “political” cases fell outside judicial review to begin with was that no protection from administrative courts against police decrees had existed in Bavaria even before the National Socialists.
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Where the law did provide a cover, the court tried to protect the rights of Jewish synagogues
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and Jewish tradesmen.
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But as soon as the authorities issued concrete directives, the burden of proof was reversed—for example, when it came to the “unreliability” of Jews with respect to commercial law.
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And the decision to revoke a veterinarian’s license because he was homosexual seemed only natural at the time, given that homosexuality was punishable by law.
¹⁰⁶

5. Even stronger tensions are evident in the picture we get of the administration of justice by the Administrative High Court of Saxony. Its development was certainly not as idyllic as Martin Baring has described in his engaging sketch.
¹⁰⁷
The system of the general clause with “negative enumeration” that was unique to administrative jurisdiction in Saxony took immediate effect when it came to Gestapo matters,
because the legislative branch had acted as early as 1933.
¹⁰⁸
The court did not defend its powers of review through narrow interpretation but referred even “indirect political” matters to the realm outside the law. It yielded to the simple assertion that the Reichstag Fire Decree applied or that the Reich Governor had intervened politically, even if he had no legal basis for doing so.
¹⁰⁹
As it was, legal protection from the state of Saxony ended where measures of the Reich authorities were concerned, and there was no equivalent on the level of the Reich.
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Even before 1933 the Administrative High Court of Saxony had attained special renown in questions relating to building and land law. It now took the initiative in these area with a leading decision on January 18, 1935, declaring that the liberal notion of a “material building freedom” on the part of the individual had come to an end. Henceforth the highest principle was that “construction must not damage the national community.”
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The ramifications of the decision were widely discussed,
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and since there was a danger that persons willing to build could be deprived of their rights, the court itself narrowed it down again.
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In much the same way the court also politicized freedom of trade
(Gewerbefreiheit)
. In particular, it countenanced denying someone the right to engage in commercial activity for political reasons not subject to verification.
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Communists, International Bible Students, and Jews were therefore not protected when it came to commercial law.
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On the whole, the efforts of the Administrative High Court of Saxony to preserve the standards of the
Rechtsstaat
—and it did make such efforts—were limited to formalities and to material questions of less importance. Examples include the necessity to justify decisions on legal redress, respect for a decision on the part of the police, the retracting of preferential administrative acts, the duration of the time limit for legal redress (falsely set too long), and the improper use of a small fee as a “fine.”
¹¹⁶
The Administrative High Court of Saxony, like other high courts, was practically shut down by the Führer decree on simplifying the administration. Herbert Schelcher, presiding judge from 1932 on, tried to maintain the traditional course as best he could. But that very proviso, “as best he could,” is the crux of the problem.

6. The Administrative High Court of Thuringia, in existence from 1912 to 1948,
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was among the small Administrative High Courts. It clashed with the National Socialists as early as 1930 because of the National Socialist Minister of the Interior Frick. As a result, its position was from the outset not very strong. The position of presiding judge became vacant in 1934 and was not filled. Decisionmaking came to an end at this court in 1941.
¹¹⁸

Its best known decision during the period of National Socialism concerned the question of police restrictions on commercial freedom
(Gewerbefreiheit)
outside of § 143 of the Commercial Code.
¹¹⁹
While the Administrative High Court of Prussia preserved the liberal position on this issue,
¹²⁰
the court in Thuringia bypassed the question of legality by invoking the notion that individual rights were embedded within the larger community, a notion freely drawn from Nazi ideology. On the other hand, in tax law it opposed the abolition of an “absolutely clear regulation” by Nazi ideology as conveyed through § 1 of the Tax Amending Law,
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rebuffed police interference in the enforcement of decisions,
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and maintained the tax-exempt status of synagogues as corporations under public law, at least until 1936.
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If we examine the judicature of this court chronologically, we see here, as elsewhere, first the surrender of the authority of judicial review, followed by a phase of closer identification with the Nazi state (1935–1939) during which corrections were only made at the margins and in less important issues. Since administrative jurisdiction was “crippled” after 1939, there was no opportunity for the court to distance itself clearly from the Nazi state or to carve out an identity.

7. At present there is no specific study of the judicature of the Administrative Court of Hessia (in Darmstadt) between 1933 and 1945.
¹²⁴
Given that the archival records were destroyed in the war, such a study would be very difficult to undertake. But at least the organizational outlines are discernible. In 1937 the existing Provincial Boards
(Provinzialausschüsse)
became District Administrative Courts, and as late as 1938 a new President was appointed. However, a substantive assessment of the administration of justice, which became increasingly irrelevant in connection with the Nazi system of rule, is not possible.

8. A substantial account of the smaller Administrative High Courts is currently not possible either, without detailed preliminary studies. This is even more true for District Administrative Courts like Lüneburg or Schleswig.
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However, we do have Martin Sellmann’s detailed study of administrative jurisdiction in Oldenburg.
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It describes the cutback in the Administrative High Court’s personnel, the decline in the number of cases, the curtailing of authority by legislation, and the territorial reduction of Oldenburg when the regions of Birkenfeld and Lübeck were ceded in 1937. Here, too, it all ended with the de facto cessation of judicature through the Führer decree of August 28, 1939. The administration of justice that we can trace to 1939 through the
Zeitschrift für Verwaltung und Rechtspflege in Oldenburg
seems to have followed closely that of the Administrative High Court of Prussia.
¹²⁷

It is more difficult still to gain an insight into the administrative
jurisdiction of Mecklenburg.
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Established only in 1922, the State Administrative Courts (Schwerin, Neustrelitz) did not have much time to develop their own traditions. Here, too, the published decisions were clearly oriented toward the judicature in Prussia.
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As in Prussia, the regime in 1937 eliminated the review of Gestapo matters by administrative courts, which may have already ceased in practice in any case.
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In 1939 administrative jurisdiction was de facto shut down.