The Law Under the Swastika (31 page)

While it is thus understandable that the subject of the administration
of justice and judicial policy from 1945 to 1949 has attracted little attention, there is good reason to change that. For it is evident that the process of grappling with the legal norms left behind by National Socialism, the nearly complete absorption of the old judicial personnel into the new system in the West, and the fundamental rejection of the previous principles in the Soviet occupation zone (later the German Democratic Republic), were extraordinarily important developments of social policy. The current constitution of the courts, the intellectual profile of the entire judicial system of the postwar period, and especially the manner in which Nazi crimes were dealt with by the courts can all be traced back to the events of those years.

II.
The year 1945 did not witness a revolution in the classic sense.
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However, the capitulation of the Reich and the Allied assumption “of supreme authority with respect to Germany”
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did produce the most important consequence of a revolution: the destruction of the old legal system and the creation of a new one.

The essential war aim of the Allies was to destroy the Nazi system along with its institutions and the legal system that supported them.
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The goal of the war was not only military defeat, but also the mental and social remaking of the enemy. From the very outset, the elimination of Nazi law was regarded as the logical consequence of capitulation.
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In theory there were several ways in which this could be achieved. The clearest solution would have been to declare all sovereign acts by the Nazi state null and void. According to the traditional notion of when a legal act was invalid, the Hitler state would have to have been a despotic regime without legitimacy, from the outset and in an “obvious” way. Nobody, however, took this position,
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either because the regime had been legitimated at home by the de facto approval of the majority of the people, or because it had been internationally recognized. Moreover, the unpredictable consequences this position would have had on legal security by invalidating countless sovereign acts during the twelve years of the regime made it impossible to implement.

A less radical solution would have been to declare that henceforth at least the legislative sovereign acts between 1933 and 1945 were invalid. This would have affected not only all of the
Reichsgesetzblatt
, but also unpublished Führer decrees, autonomous statute law, legislative acts by the Nazis, and more. This position, too, proved unrealistic in view of the obvious catastrophic impact this would have on legal security.
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The only feasible approach appeared to be a middle course that would permit the elimination of obvious Nazi law without posing
an excessive threat to legal security. As early as 1943 the American and British planning groups envisaged a return to the “pre-Hitler system of law.”
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To that end they drew up lists of laws and regulations that appeared to be typically National Socialist and, most of all, incompatible with human rights.

However, until these legal norms were actually abrogated, only partial legal systems existed in the chaos at the end of the war. In the West, Eisenhower claimed “the highest legislative, judicial, and executive power” in the territory under his control;
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the Soviets did the same in the East. Behind the front lines there existed military justice and a makeshift regular jurisdiction that was set up by the Allies in the immediate aftermath and that was dependent on them.
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Where the power of the German state was still intact, it carried through with the Nazi legal system “to the bitter end.” This limbo state, partly already under military control, partly in a state of anarchy, lasted from the fall of 1944 to June 1945. Nazi law had been abrogated at all levels of Allied authority, without coordination and according to the needs of the day. The result was an extraordinary legal fragmentation.

III.
Following the official takeover of the power of the German state by the Allies on June 5, 1945, the American military government repealed a first batch of Nazi laws.
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It prohibited interpreting the law that remained in force according to Nazi ideology and drawing on decisions and literature from the Nazi period.
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Decisions should be based on the “clear meaning of the text,” though this rule failed precisely in borderline cases. This law constituted the first partial foundation of the new legal system. It reveals the technique the Allies used: removing the ideological core through legislation in the form of open-ended lists that could be expanded at will and steering the judicial personnel, which had not been replaced in its entirety for practical considerations, in the desired direction by committing it to a new system of values. There are several sketches of this system of values, for example, in the military government’s Law No. 1,
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the Potsdam Agreement of August 2, 1945,
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and the Control Council’s Proclamation No. 3 of October 20, 1945.
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Everything was secured by a vague threat of punishment (Law No. 1 of the Military Government, art. V), which clearly reveals the dilemma of having to implant a liberal system by force as well as the distrust of the German judges.

The Control Council left standing the changes to the legal system that the occupying authorities had made up to August 1945, and it sternly advised the German authorities and courts to adhere to the new legal situation.
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Its Law No. 1 of September 20, 1945,
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proceeded
to repeal a second, considerably larger batch of Nazi laws, but it, too, included only spectacular fragments of Nazi legislation. Many of the subsequent court battles over the continuing validity of legal norms from the period 1933–1945 go back to the lack of precision in this first measure.

The later supplements to Law No. 1 dealt initially with penal law,
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so that by mid-1947 the special penal law, which had arisen alongside the Penal Code, had been cut back to where it had been in 1933. Legal norms were also repealed in the field of administrative jurisdiction
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and especially in marriage law,
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also in inheritance law,
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labor law,
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land law,
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film law,
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and state church law.
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The fact that the occupying powers repealed additional Nazi laws in their respective zones didn’t help much to clarify the situation.
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For example, the American military government and the Control Council did not invalidate § 48, sec. 1 of the Testamentary Law of July 31, 1938, and the Decree on the Regulation of Inheritance Law of October 4, 1944, but the authorities in the British zone did,
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though it was understood outside the British zone, as well, that this was Nazi law.
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Slowly it became clear that ever longer lists of repealed Nazi laws would not be able to solve the problem entirely. Like it or not, the remaining difficulties had to be left to the judicial system. However, since the Allies had different ideas about how to deal with the judiciary and were projecting their own, different legal traditions onto the German situation, there was certainly no uniform solution.

Before we turn to the substantive content of this administration of justice, I will sketch at least the outlines of the organizational rebuilding of the judicial system and the praxis of rehiring judicial personnel, for both factors had significant repercussions on the content itself.

IV.
April and May 1945 saw the “cessation of the administration of justice,” a scenario hitherto known only in theory (§ 203 of the Civil Code, § 245 of the Code of Civil Procedure). However, away from the front some of the Amtsgerichte and Landesgerichte remained intact. Even the Supreme Court of the Reich was formally “ready for service”
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until April 20, 1945, when the Americans closed it down and set up a commission to oversee its administration.
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The commission was subsequently dissolved by the Soviets on October 8, 1945.
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Eisenhower’s Proclamation No. 1, which he issued as Supreme Commander of the Allied Forces, declared: “All German courts . . . within the occupied territories are closed until further notice. Jurisdiction is revoked throughout the occupied territories from the People’s
Court, the Special Courts, the SS Police Courts, and all other extraordinary courts. Resumption of work by the criminal and civil courts . . . will be authorized as soon as circumstances permit.”
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Accordingly, regular and administrative courts in the American zone were shut down, the special courts and party courts were abolished, and the admission of jurists to the practice of law became subject to review.
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The Soviet Military Administration, the British Control Commission, and the French Chief Military Command took corresponding steps in their respective zones.

These negative measures were soon followed by constructive legislation from the Control Council.
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Initially this legislation gave the impression of an all-German structure of the judiciary: the Law on the Constitution of the Courts, in the version of March 22, 1924, was taken as the starting point, and the plan called for Amtsgerichte and Landgerichte, as well as Oberlandgerichte. Jurisdictions were to be what they had been before 1933, with an increase in the value in litigation before the Amtsgerichte to 2,000 Reichs marks. Subsequently the foundations were laid for the jurisdiction of labor courts and for administrative jurisdiction.
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The first Amtsgerichte and Landgerichte resumed work as early as the end of May 1945. The fall of 1945 saw the appointment of the first presidents of Oberlandesgerichte. In the spring of 1946 regular jurisdiction was more or less in working order again. It faced roughly the same problems in all four zones. Unfinished cases had backed up. A much smaller body of judges, some of them underqualified, was overburdened, especially by divorce cases and a rise in crime, to which were added crimes from the Nazi period that had to be dealt with in the courts. Everywhere there was uncertainty about what law should be used, about lines of continuity with the Weimar judicial system, about how to deal with the legislation of the Control Council and the hastily enacted new law. Moreover, all German jurists were subject to the Allied de-Nazification program.
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In organizational terms nothing was uniform. Still, there were some supra-regional organizational centers of judicial administration. The most important, apart from the German Central Administration for the Judicial System in the Soviet zone, were the Central Judicial Office of the British zone, and after July 24, 1948, the Legal Office of the Administration of the Unified Economic Region.
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The last two institutions became—organizationally and in part also in terms of personnel—the immediate precursors of the first Federal Ministry of Justice.

That essentially covers the elements common to the four zones. As time went on, consensus among the occupying powers increasingly eroded in the field of judicial policy. Developments unique to each
zone proved stronger than any consensus. Those developments began early, and their roots definitely reached back to the war years, when plans for the structure of the judicial system were made in émigré groups and among the Allies.

1. This was emphatically the case for the
Soviet zone
. To be sure, the proclamations concerning the judicial system that were issued by the KPD, the SPD, the Christian Democratic Union (CDU), and the Liberal Democratic Party of Germany (LDPD) in the summer of 1945 were largely the same. However, thanks to good preparation and with protection from the advancing Soviet forces, initiative groups of the KPD were able to attend to the judicial system relatively quickly. Depending on the local situation, untainted bourgeois jurists, reactivated retirees, prominent citizens, and members of the KPD were appointed “judges for immediate service” and entrusted with exercising the function of judges in village and city courts, in Amtsgerichte and Kreisgerichte, in Bezirksgerichte and Volksgerichte.
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Mecklenburg, Mark Brandenburg, and the province of Saxony were under stronger Communist control, while Saxony, Thuringia, and Berlin were at first predominantly in the hands of the noncommunist parties. Order No. 17 of the Soviet Military Administration in Germany (SMAD), issued on July 17, 1945, created an umbrella organization for the judicial departments of the newly formed
Länder
administrations in the German Central Administration for Justice (Deutsche Zentralverwaltung für Justiz). The Socialist Unity Party (SED) (founded on April 21–22, 1946) acquired growing influence in the central administration, though for the sake of appearance it left the respected Weimar politician Eugen Schiffer (1860–1954) at the head of the institution until 1948. Behind him stood the Soviet justice officials of SMAD, whose help is gratefully acknowledged in modern, official East German accounts of the events.
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As far as the structure of the courts was concerned, the Soviet authorities, in accord with Control Council Law No. 4 of October 30, 1945, returned to the 1924 Law on the Constitution of the Law Courts,
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while the approach that was taken in disputes involving labor law and social security marked a departure from tradition.
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Heated disagreements developed over administrative jurisdiction. The original conception of the Control Council and the Soviets called for its establishment in all
Länder
of the Soviet zone, but in the end it was set up only in Thuringia, Mark Brandenburg, and Mecklenburg.
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