The Law Under the Swastika (27 page)

Much the same applies to the administrative courts of the Hanse cities,
¹³¹
to Braunschweig, Anhalt, and Lippe.
¹³²
The published case material is not very extensive, and it seems difficult to assess, especially with the limited sources available, how much litigious material was eliminated in preliminary proceedings, how frequently the final instance was reached, and what was eventually released to the journals for publication. It is possible that cases the court feared would lead to tensions with the state or the party were not published. Still, this court, too, shows the typical traits we have highlighted so far: the curtailing of the court’s authority, a conception of the law that was in principle positivist, combined with a willingness to yield in cases of conflict to pressures from the Gestapo and to “political directives” from above. Within a state governed half by rules and half by authoritative decisions, these courts were thus neither effective bulwarks of civic freedoms nor instruments of terror. Rather, they were quiet guarantors of what the regime defined as “normality” for as long as it deemed it useful to maintain that normality.

IV.
From the perspective of the regime, administrative jurisdiction under National Socialism remained to the end an element that was liberal in origins and that slowed down the regime’s dynamism. To a high degree it preserved continuity with the judicial tradition of the civic
Rechtsstaat
in terms of personnel and ideas. That is to its credit, and I am not one to detract from it here.

However, this perspective is too simplistic. It prevents us from realizing that the regime stabilized itself in very different ways in its various phases: from the phase of revolution in 1933–1934 to the internal consolidation between 1935 and 1937, to the renewed “revolutionization” in 1938–1939 and wartime rule. The regime was largely dependent on cooperation from traditional civil servants and judges who were nationalistic and conservative but not National Socialist in their thinking. But these groups were willing to cooperate only if the civic façade of a “national
Rechtsstaat
” was preserved. The continued existence of administrative jurisdiction played a major role in doing just that. The Nazis got rid of administrative jurisdiction without further
ado whenever it was in the way, as in the regime’s repression of its opponents and its anti-Jewish measures; whenever it was inconvenient, as in the supervision of municipalities and schools; and whenever it slowed things down, as during the war. But administrative jurisdiction had a useful function in conveying the impression that the authoritarian Führer-state was adhering strictly to its own rules or was merely helping rightfulness
(Rechtmäßigkeit)
prevail over the obsolete notion of lawfulness
(Gesetzmäßigkeit)
. Administrative jurisdiction did not cost much, and it allowed the bourgeois public to preserve the illusion that the
Rechtsstaat
was continuing to exist, at least in part.

The importance of this function of the courts became clear especially during the war, when the regime sounded out the mood at the “domestic front.” “The finding,” it was said from official sides, “is favorable to the judges. It states that the judiciary is having an excellent effect on the population. Confidence in regular judges is high among the people. The few lapses are completely negligible, so that one can say that the judges are doing their duty fully in holding up the domestic front . . . We have come to realize that one of the pillars bearing up the domestic front is called legal security.”
¹³³

But administrative justice was also a useful negotiating point within the regime’s power centers. Once Himmler had assured the inviolability of the Gestapo through legislation, court decisions, and legal writings, it was easy to concede the continued existence of administrative jurisdiction to Ministers Frick, Gürtner, and Frank, though with the proviso that it not get out of line. The separation of spheres was a division of power, though in the end the Gestapo and SS emerged the winners. The façade of the normative state with its administrative jurisdiction concealed the real strengthening of the “prerogative state” until it was too late for effective countermeasures.

Finally, we must bear in mind that the continuation of administrative jurisdiction and the preservation of constitutional standards must be attributed to the confluence of different circumstances, and no one can take credit for it. The speed with which the National Socialists transformed state and society differed from one sphere to the next. Administrative jurisdiction, once deprived of its ability to protect the individual and obligated to obey the new rulers, could remain for some time untouched in the “slipstream.” Moreover, it typically takes several years before upper courts get around to dealing with a given state of affairs. They are thus always a few steps behind, a situation that can later be favorably highlighted as the preservation of tradition. We can never determine how many cases of gross injustice were never brought before the courts or how many cases were ended in the first
and second instance and with what outcome. The case material available to us today, which was deliberately selected for publication, does not represent the reality of the Nazi state. It is that reality, with its banal and its terrible aspects, that one must keep in mind if one has to render judgment, in whatever sense, on administrative jurisdiction under National Socialism.

NINE
“Harsh but Just”: Military Justice in the Service of National Socialism

I.
Military justice during the Nazi period was hardly discussed in Germany in the first decades after 1945. The interest of the public and of historians was focused on the Holocaust and “normal” criminal law, especially its function as an instrument of political oppression. Military justice remained in the shadows, so to speak.

The history of scholarly work on this topic began in 1959 with a sketch by the Marburg criminal lawyer and former military judge Erich Schwinge.
¹
His essay set the tone for a research project planned by the Institute for Contemporary History in Munich, before the project even got off the ground. In 1962 the project director, the former Reichsgerichtsrat and later President of the Federal High Court, Hermann Weinkauff, asked Otto Peter Schweling, a former military judge and then senior public prosecutor at the Federal High Court, to write a history of military justice. The study was to be published as part of a comprehensive series entitled “The German Judicial System and National Socialism.” In the end, however, the book was not published in this series.

Weinkauff had written the introductory volume to this series, in collaboration with A. Wagner. In it Weinkauff, an active representative of the “renaissance of natural law,”
²
had anticipated the results of the research project, which was still in its planning stage. Weinkauff combined the dubious advantage of having “been there” with a subjective interpretation that was also based on generational sentiment and his own life experiences. As a result he superimposed upon historical objectivity a pedagogical impulse, his opposition to legal positivism, and the real argument behind his interpretation: namely, that the German legal system was better than its reputation and had been the true victim of National Socialism.

The second volume of the project showed the same tendencies,
³
though it was little more than a collection of material organized according to an anachronistic scheme derived from the Basic Law of the Federal Republic. By contrast, the third volume, W. Wagner’s
Der Volksgerichtshof
(The People’s Court [1974]), was substantially better. Most of all, Wagner did not impose a hasty interpretation on the richly documented material. That would have been easy to do since an account of the People’s Court could not possibly have had any apologetic intent.

The hope that the scholarship of this project would show a growing professionalization and historicization would have been dashed if Schweling’s volume had been published as part of the series. It is clear that the institute’s decisionmaking process was unusually long and unpleasant for the author. However, it was a positive sign that the institute did not give in to the massive pressure from the editor, Schwinge. Had it published the book, the institute would have destroyed much of the reputation it had built through careful work of impeccable scholarship.

The story of how this book came to be written is bizarre in itself. Members of the Association of Former Military Judges met in Marburg on May 8–9, 1965, to support the project by gathering and coordinating material. Schweling got to work and submitted a first draft in 1966. This version was reworked at the institute, deliberated upon, and eventually put aside. Several reviewers gave their opinions, some positive, some negative. The advisory committee, under the chairmanship of the historian K. D. Erdmann, gathered further information, and after a long time it finally decided not to accept the book as an institute publication. Shortly thereafter the author died, perhaps even as a result of the emotional turmoil caused by this decision. Erich Schwinge, asked by Schweling’s widow to represent her late husband’s interests, condensed and improved the manuscript and published it in 1977 with a Marburg publishing house.
⁴

II.
The chief problem of the Schwinge/Schweling book
⁵
is methodological. It begins by defining the topic “military justice” very narrowly, with the result of excluding the jurisdictions of the SS, the police units, and the Volkssturm (home guard), which were troubling to the overall picture. Although one can justify this in formal terms, it does arouse suspicion that the intent is to shed inconvenient baggage. This suspicion is reinforced when the author proceeds to marginalize the courts-martial. Later in the book (§ 13), Schweling discusses all of four court-martial cases, which he grades as “unobjectionable,” “correct,” “conscientiously and carefully carried out,”
“harsh but still justifiable in legal and military terms.” He argues that the gloomy cases from the “turbulent” final phase of the war, which he is certainly aware of, must not be “held against Wehrmacht justice,” since they were supposedly atypical.
⁶
Having limited his topic by way of definition, Schweling characterizes German military justice as an institution that, by “its nature and task,” was called upon “to serve the law and only the law.”
⁷
Although he does indicate that military interests may have occasionally prevailed over the law, he maintains that, for the most part, “the interplay worked fine.”
⁸

This already sketches out the crucial positions of the “a priori understanding” the author reveals on nearly every page. Let us follow his argument further: The organization and procedures of military justice were “simple but functional,” indeed “exemplary.”
⁹
Material criminal law was “clear and easy to survey and had adequately defined offenses.”
¹⁰
The traditional reputation was “good” (criticism came mostly “from circles of the political left,”
¹¹
which presumably means it was invalid to begin with). Schweling even maintains that the military justice of World War I was too formalistic and constitutional
(rechtsstaatlich)
, a judgment fully in line with the views of the political right in the Weimar period and under National Socialism. This is underlined by weighty side glances at the British and the French, who supposedly needed a harsher military justice because of their lack of military talent and poorer discipline.

Having laid down this foundation, Schweling proceeds to discuss his actual topic. He begins with a rough sketch of the relationship between National Socialism and the law, on the one hand, and between the Wehrmacht and Wehrmacht justice, on the other. Its upshot is the contention that Wehrmacht justice, as a particularly “clean” and suffering part, stood in latent opposition to National Socialism. Next he inserts brief accounts of Hitler and Göring, and their relationship to Wehrmacht justice. The Wehrmacht jurists he describes by way of contrast, down to the selected—and universally positive—examples of individual Wehrmacht judges, were either not members of the Nazi party or had joined only under pressure. The unequivocal National Socialists who do appear, such as General-Judge Roeder, were “atypical.” Here, too, the author’s intent is clear as day: The Wehrmacht jurists as a group (individual “lapses” are always readily admitted) are to emerge from the events without a blemish. This is a very understandable view for someone who was there and thinks he has nothing to reproach himself for. But it is not the perspective of the historian, for whom the question whether something or somebody “remained clean” or not is not very meaningful to begin with.

The core of the book is an examination of the files of the military courts. Schweling provides an informative survey of the existing material (about 11,000 files), which he reduces to 1,000 files through an acceptable random-selection process. What follows next, however, is not an analysis of these files but vague speculation: Since the official collections of the Federal Court and the Social Courts contain few decisions involving “miscarriages of justice” from the wartime period, the author infers that there were few miscarriages of justice (again not counting verdicts of courts-martial). This line of reasoning is inadequate, since it ignores some vital questions: What cases were brought before the courts of the Federal Republic, to begin with? What cases came before the Obergerichte (higher courts)? Finally, what was selected for inclusion in the official collections? Schweling supplements this argument with a selective polemic against three authors who criticized Wehrmacht justice (we shall leave aside the question of whether their views were well founded or not).

In discussing individual decisions, first those of the Reich War Court from the official collection, the author proceeds by examining whether a decision should be regarded as having been “influenced by National Socialism.” His conclusion is that among the decisions of the official collection before 1939, only one was “National Socialist,” while the other 161 showed “hardly a trace of the National Socialist spirit.”
¹²
However, since he does not provide verifiable criteria for determining what makes a decision “National Socialist,” his findings have to be taken on faith, at best. Of the decisions of the Reich War Court after 1939, he examines only those that have been previously discussed.
¹³
Why only these? Apparently because the decisions that have not yet been discussed do not need to be defended. Much discussed, even during the war, were the harsh decisions by the First Senate of the Reich War Court on the concept of “the public” as it related to the offense of “demoralization of the troops.” Schweling, who acknowledges that these decisions were a “mistake,” emphasizes that they were episodic and of little importance for the jurisdiction over the troops. And in two other questions on which the Reich War Court took a harder line, Schweling states flatly and entirely without substantiation: “There is, in any case, no indication that the view of the Third Senate prevailed at the grassroots.” He further maintains that “this controversy in all likelihood had little influence on the rulings of the field courts.”
¹⁴
Schweling’s line of defense is to prove that the Reich War Court administered justice largely in line with the traditional notion of the
Rechtsstaat
. Sometimes he is unable to do so, no matter how hard he might try, even by invoking the “necessities of war” and claiming
repeatedly that “the same happens in all civilized states in the world.” In indefensible cases he assumes that the lower courts were not influenced by the Reich War Court’s “mistakes” and “lapses caused by the circumstances of the times.”
¹⁵
However, he assumes as a matter of course that maxims of the Reich War Court that adhered to the principles of the
Rechtsstaat
filtered down to the lower courts.