The Law Under the Swastika (33 page)

In the Soviet zone, the Western slogans of “human rights,” “basic rights,” “judicial independence,” “legal security,” “the idea of justice,” and “depoliticization” were branded as elements of bourgeois ideology. At the same time, however, the Soviets also criticized legal positivism as “formalism” and talked about overcoming it, with the goal of allowing the administration of justice to take sides politically while ignoring all prior law. Criticism of positivism did not die down in the West and the East until the early 1950s, more or less at the same time: in the West with the gradual waning of the renaissance of natural law, in the East with the move to commit the judicial system to “democratic legitimacy.”

These few remarks reveal the deep and early ruptures that the division of Germany caused in the judicial system and in judicial policy. In 1946 and 1947 legal journals could still publish reports about the development of the judicial system in all of Germany, East and West could still discuss the application of Control Council legislation (for example, Law No. 10), and all-German legal conferences could still take place. The first two conferences (Bad-Godesberg, June 16–17, 1946, and Wiesbaden, December 3–6, 1947)
⁷³
were unquestionably all-German events. However, at the conference in Konstanz, June 2–5, 1947,
⁷⁴
there were heated debates especially about the application of Control Council Law No. 10 and the depoliticization of the judicial system. Three months later, at the conference in Bad-Godesberg, September 30–October 1, 1947,
⁷⁵
the break was obvious: The representatives of the Soviet occupation zone, H. Lange and E. Melsheimer, were no longer allowed to participate.

We have to bear this development in mind as we consider individual court decisions on which legal norms were still “valid law.” It becomes clear very quickly how the overall legal-political climate affected these decisions. In the Soviet zone, as in the West, it was initially necessary to regard the bulk of legal norms from the Weimar Republic and the Nazi period as still in force. The first layers of clear Nazi law were then stripped away by the legislation of the Control Council and by the legislative acts of SMAD and the judicial administrations of the various
Länder
.
⁷⁶
Judicial decisions on the continuing validity of laws enacted after 1933, such as were left, had to deal especially with the following issues:

—the restriction of legal redress in criminal cases by the Emergency Decree of June 14, 1932 (repealed by § 17 of the Decree of September 1, 1939)
⁷⁷

—the regulations concerning the forcing of the accusation (§§ 172 ff. of the Code of Criminal Procedure, repealed by § 2 of the Decree of August 13, 1942)
⁷⁸

—the continuing validity of § 359 of the Code of Criminal Procedure in the redaction of 1943
⁷⁹

—reinstatement of the prohibition of
reformatio in peius
⁸⁰

—the earlier versions of §§ 175 ff., 240, 339 of the Penal Code and the continuing validity of § 170 of the Penal Code
⁸¹

—the powers of the state prosecutor in marital matters according to the Decree of March 18, 1943,
⁸²
and in challenges to a child’s legitimacy
⁸³

—the continuing validity of § 1549 of the Civil Code in the version before 1938
⁸⁴

—the legitimation of marriages to soldiers killed in the war
⁸⁵

—the invalidity of anti-Jewish administrative acts

The main issues of these decisions were clearly in the area of criminal and family law.

From the outset the prosecution of Nazi crimes and war crimes was vigorously pursued in the Soviet zone, especially when it concerned crimes against “antifascists.” The legal basis was above all Control Council Law No. 10. In the Soviet zone, failure to apply this law and delays in applying it because of its incompatibility with the prohibition of retroactive laws were seen and denounced as a sign of “bourgeois legal thinking.”
⁸⁶
This denunciation was aimed especially at the judicial system in Thuringia: eventually, under further pressure from criticism and SMAD Order No. 201, it came around “to a proper application of the law,” as Benjamin later described it.
⁸⁷
This SMAD order in August 1947, which made it possible to focus the trials on the major perpetrators and spare the mass of sympathizers and nominal party members, served to accelerate the trials and, above all, to calm the population, which had to be won over to the new regime.

On the question of what should be regarded as “valid law,” there was consensus in the Western zones that the repeal of Nazi laws by the Allies had taken effect ex nunc, from the time of their repeal. The typical justification went like this: “It would lead to massive confusion and legal insecurity to pretend that those Nazi laws that are contrary to current notions were never present and to judge all legal situations arising from them as though these laws had never existed. The consequences would be highly deleterious, especially in the sphere of economic life.”
⁸⁸
However, there was already controversy surrounding the question of whether the repeal of Nazi laws by the Allies was final. While the prevailing position was to keep open the possibility of future repeals by the courts,
⁸⁹
the Oberlandesgericht Hamburg, concerned to put a stop to the continuing uncertainty about the foundations of the
law, declared that the power of judicial review of Nazi laws had come to an end.
⁹⁰
That view did not prevail.

When courts were called upon to decide on the continuing validity of specific norms from the Nazi period, they drew on the familiar instruments of judicial methodology to explain their decisions. Justices argued from a norm’s purpose and how it had come into being, pointed out the consequences of invalidating the norm, or invoked foreign legal systems in which comparable norms existed. Arguments that used “moral law,” axioms of natural law, and the principles of the restored
Rechtsstaat
were methodologically the least secure, but could be understood by a broader public.

For example, there was a debate over whether the older version of § 175a, subsection 3 of the Penal Code should be used or the tougher version created by the law of June 28, 1935. Although this law had not been repealed by the Control Council, there were indications that this was a typical Nazi law. Some courts, invoking the legal-historical development of this paragraph, which had seen several attempts to tighten it after 1919, concluded that the expanded version was the result of a legitimate process and its application could continue. However, they conceded that decisions of the Reichsgericht concerning this norm had been influenced by Nazi tendencies and should therefore be disregarded.
⁹¹
Parallel problems were discussed in connection with § 218 of the Penal Code.
⁹²
Arguing that the goals of norms from the period after 1933 must be seen as reasonable also under changed circumstances, some courts found, for example, that a Decree on Rights of Timeless Value of November 16, 1940,
⁹³
and § 1595a of the Civil Code
⁹⁴
were valid. It was rare for positive law to be directly passed over with reference to contrary natural law or, say, “the most elementary principles of the system of criminal law.”
⁹⁵
A comprehensive analysis of the decisions rendered between 1945 and 1949 might show that the practical effects of the so-called renaissance of natural law on decisionmaking and opinions did not run as deep as has sometimes been assumed.

The most important debates were triggered by the question about the validity of administrative acts and judicial decisions from the Nazi period.
⁹⁶
Could the Nazi state enact “valid law” while at the same time being morally reprehensible? Anyone who answered this question in the affirmative was compelled to make a principled separation between legal and moral judgments.
⁹⁷
Prevailing opinion after 1945 condemned such a separation nearly as unanimously as had been the case between 1933 and 1945. The opposing position should have followed up by asking if this meant that all sovereign acts by the Nazi state were invalid
from the outset. Nobody advocated this position in its extreme version. Instead, prevailing opinion, drawing different lines of distinction and invoking various justifications, sought to do justice to the historical fact that National Socialism could enact valid law in many areas of daily life as well as obvious unjust law that was invalid from the outset.

That is why sovereign acts based on Nazi laws were initially regarded as valid in principle. There were legal exceptions to this—for instance, the possibility of repealing decisions by family courts that were “based entirely or predominantly on racial, political, or religious grounds”
⁹⁸
or the nullification of sentences handed down on the basis of the so-called
Volksschädlings
Decree (Decree on enemies of the people).
⁹⁹
Other than that, the invalidation of court decisions and administrative acts was possible only by using the conventional procedural and administrative rules. As examples of judicial grappling with these questions, I will mention the invalidity of the auctioning off of Jewish property,
¹⁰⁰
the validity of a deletion in the land registry,
¹⁰¹
and the execution of an immoral legal title.
¹⁰²
Other cases concerned the question of whether the suspension of criminal prosecutions ordered by the Nazi state was in force.
¹⁰³
The problems posed by “administrative acts contrary to natural law” emerged very clearly in a case from 1942, in which permission for the sale of land had been denied because the person concerned was considered politically and ideologically unreliable. The courts found that this administrative act had been valid, arguing that a contrary decision would mean “that all administrative acts and many court decisions of the twelve years in question would have to be subjected to a review and many of them declared to be invalid. However, this would throw all legal and economic life into chaos.”
¹⁰⁴
H. Coing criticized this justification by arguing that sanctioning sovereign acts that are contrary to natural law as lawful for reasons of legal security imposed “the stain of illegality on resistance to these acts.”
¹⁰⁵

The punishment of Nazi crimes, which was progressively handed over to the regular courts, got off the ground slowly in the Western zones and was not carried through in a uniform manner. Justices were reluctant to apply Control Council Law No. 10—originally intended for the administration of justice by the Allies—because it left the facts of a case vague and was “retroactive.” The Penal Code was preferred as the legal basis for prosecution, especially in the so-called informant trials and the euthanasia trials. On the whole, West German jurists were of the opinion that they were dealing here with a special political jurisdiction that lay outside the regular judicial system and that they should do their best to avoid it by invoking the slogan of “depoliticization.”
¹⁰⁶

It is well known that the omissions in this area during the first years have grown into a heavy burden for the German judicial system.
¹⁰⁷

VI.
Although there was a common normative starting point in the legislation of the Control Council, the question of how the judicial system developed between 1945 and 1949, and what connecting lines we can draw to other problems of reconstruction, can be answered only separately for the various zones. The Soviet zone, in particular, went its own path, as did the French zone to some extent. The British and American zones preserved certain shared elements, thanks to a joint background of common law and a related Anglo-American conception of politics. The British, however, promoted centralized institutions, while the Americans in general pursued their course through the
Länder
. The British and American zones also conducted de-Nazification in quite different ways, though the results of their efforts were very similar.

The Soviet administration removed the old judicial elite in its zone by a “revolution from above,” allowed a new elite loyal to the SED to move into its place, and replaced the old dictatorship by a new one. By contrast, the Western powers in part did not seek a break with tradition in their zones, and in part were unable to implement such a break against opposition from the legal profession. The legal profession, held together by common training, professionalism, and a traditional sense of elitism, remained essentially untouched. The profession dropped only individual jurists who were simply too heavily burdened by their Nazi past to be retained. Jurists used some common phrases, which always contain a nugget of truth but also a lot of self-deception and self-pity, to shield themselves from accountability: “I remained in place to prevent worse from happening,” “I held up the ideal of nonpartisan judiciary in difficult times,” “I served justice as best I could,” and so on. After 1945 not a single judge was punished in West Germany for his activity under National Socialism. Not one of the approximately 2,000 continuing education conferences for judges and prosecutors that have been held since 1949 was devoted to the topic of National Socialist law. These facts shed a revealing light on the underlying attitudes.
¹⁰⁸

Features common to the overall development become visible only on a more abstract level where all political differences between the new directions taken after 1945 are ignored. If we look at the issue from this vantage point, it becomes clear that the methodology used in East and West moved along parallel tracks: In the first phase, Nazi laws that were heavily ideological and considered untenable were repealed
by the legislative authority, and an improvised emergency administration of justice was put in place. The second phase saw the repeal of questionable norms by the courts. To help the new system of values take root, the occupying powers prohibited judges from following in the footsteps of the old judicature and judicial literature. They also attempted to guide the administration of justice by setting positive goals and committing it to values transcending positivism—be it the Western system of values or the higher law of the working class. Where there was little confidence that the judicial personnel was amenable to guidance, it was replaced. The third phase saw the enactment of new norms by a legislative power established under the protection of the occupying powers.