The Law Under the Swastika (4 page)

The goals, methodological principles, and style of the scholarly study of National Socialist law have also changed over time. The first years were dominated by eyewitness accounts,
⁹
bewildered helplessness, and affirmations of support for democracy and natural law.
¹⁰
Questions such as, How could this happen? and What now? were intended not so much to enhance scholarly understanding as to shape a political program.
¹¹
Advocates of natural law fought legal positivism as the main culprit,
¹²
in the process often overlooking the fact that they were using the same arguments with which National Socialism itself had opposed positivism, though now under a different political banner. Similarly, some took methodological approaches that had been embarked upon after 1933: They propagated a new order of political values and recommended that these be implemented via the “breach points”
(Einbruchstellen)
of the general clauses.
¹³

During the first years of the Federal Republic of Germany, the scholarly study of National Socialist law was overshadowed by other, more pressing tasks. Almost without exception, the law faculties and their legal historians shied away from the topic. The first surveys of the legal changes under National Socialism were still clearly subordinated to nonhistorical purposes that were pedagogical, apologetic, or political in nature, and they were of limited value. The perspective of “those who had been there” was narrowed down to a pattern of explanation that encompassed their own experiences. It took shape in the climate of a general “coming to terms with the past”
(Vergangenheitsbe-wältigung)
and involved a mixture of (a little) self-recrimination and (a lot of) self-justification, with the two motivations often difficult to tell apart. From both perspectives the National Socialist framework of power, together with its law, appeared to be a system of monolithic consistency, overpowering for victims and fellow travelers alike. The political situation of the Cold War also changed the way the past was perceived. Anti-Bolshevism proved a thread of continuity between National Socialism and the young Federal Republic. All this has been exhaustively discussed in the controversy over the various theories of totalitarianism and fascism.
¹⁴

The domestic political consensus in the Federal Republic began to crack with the end of the Adenauer era. National Socialism was one of the controversial issues that were igniting a generational conflict.
The German Democratic Republic sought to capitalize on this for propaganda. Its
Brown Book
and
Gray Book
were distributed at universities in West Germany and widely read.
¹⁵
Beginning in 1965, in response to student initiatives, interdisciplinary lecture courses on National Socialism were organized at various universities.
¹⁶
They made important contributions also to the history of National Socialist law. Above all, however, they broke the taboo of a public discussion of the topic and gave impulse for further research.
¹⁷
A growing stream of specialized studies of National Socialist law appeared in their wake.
¹⁸
Most recently the topic has also been addressed in university histories.
¹⁹

Though it is obvious that these first publications were connected with changes in domestic politics after 1965–1968, the growing number of sources and the increasing depth and subtlety of historical analysis developed a dynamic all their own. The professional standards applied to the quality of the scholarship rose, overly simplistic explanations and the political premises that had been dominant in the beginning lost their persuasive power. (However, that was true only in the Federal Republic. Corresponding scholarly work in the GDR lagged far behind in volume, despite the propaganda against the Federal Republic mentioned earlier; above all, it was to the very end strictly tied to political purposes and thus also qualitatively of limited value.)
²⁰

In this way the gaps in scholarship were slowly beginning to be filled in. It was now possible to present large syntheses of criminal law—which was particularly important in shaping National Socialist law—and the law of discrimination against minorities, which had attracted attention from the beginning.
²¹
Scholars looked at areas of the law that might seem somewhat remote, such as agrarian law,
²²
tax law and economic law,
²³
labor law and social law.
²⁴
Some researchers reconstructed the activities of the National Socialist Lawyers’ Association (NS-Rechtswahrerbund) and of the Academy for German Law,
²⁵
while others wrote monumental studies analyzing individual courts and institutions and, in particular, judicial policy from the perspective of the Reich Ministry of Justice.
²⁶
A collection of essays cast sidelights on “everyday justice.”
²⁷
The legal decisions of the Oberlandesgericht (Court of Appeals) in Celle came in for a thorough scrutiny,
²⁸
as did the Special Court in Bremen
²⁹
and the handling of Nazi crimes in terms of criminal law after 1945.
³⁰
Eventually even lawyers themselves drew the attention of historians.
³¹

III.
Today, after two decades of wide-ranging scholarship, we are able to describe the most important fields of National
Socialist law with much greater precision. We can underpin such a description with a few basic characteristics of the legal situation at the time.

1. Regarding
constitutional law
, after January 30, 1933, Germany witnessed a transition from a parliamentary system (or what was left of it) to dictatorship in the space of a few months. The parties were dissolved through barely legalized terror and political pressure,
³²
and the NSDAP (National Socialist German Workers’ Party) was made the state party.
³³
Intermediary powers and controls were abolished when the party staffed the most important executive posts (police power) with party functionaries, created a network of horizontal ties between the party and the state apparatus,
³⁴
and refashioned the professional civil service into one that was cleansed of political enemies and victims of racial persecution and was duty-bound to the new state.
³⁵
At the same time, however, these developments created the basis for new power struggles that continued to the end of the regime.

The
Gleichschaltung
(coordination)
³⁶
of the states
(Länder)
put an end to federalism, in violation of the constitution.
³⁷
The Reichsrat was abolished;
³⁸
as the organ of the
Länder
in the legislative process, it had become as superfluous as the Reichstag, which, after the suppression of the KPD (Communist Party) and against the opposition of the SPD (Social Democratic Party), had acquiesced in its own emasculation through the Enabling Act.
³⁹
Thereafter the Reichstag existed only as an organ of acclamation that could provide plebiscitary legitimacy and as a sounding board for declarations in foreign policy.
⁴⁰
After the death of President Hindenburg, Hitler united in his person the offices of Reich President and Reich Chancellor.
⁴¹

The principle of the separation of powers and the distinction between public and private law—including the liberty-securing guarantees of the liberal
Rechtsstaat
—were abolished, openly in part, and in part tacitly. Accordingly, the forms of free social organization—unions, professional organizations, associations, politically significant clubs—were either done away with or “coordinated.” Only the churches were able to resist that development in the so-called
Kirchenkampf
(struggle between church and state), though they suffered heavy losses in charitable work and in the collection of donations. The process of formulating political objectives was progressively put under the control of the government, and the Reich Ministry for Public Enlightenment and Propaganda, set up in March 1933 and headed by Joseph Goebbels, took over the centralized regulation of language. The free press was eliminated
⁴²
in accordance with Hitler’s belief that freedom
of the press was “objective lunacy.”
⁴³
Official supervision and control of art through the Reich Chamber of Culture was along much the same lines, if the remnant of artistic activity that had not emigrated and was not suppressed still deserved to be called art.

The result was a militarized and authoritarian centralized state that sought to gloss over the clash of competing interests with strident propaganda about a “communal way of thinking”
(Gemeinschaftsdenken)
.
⁴⁴
Numerous power centers competed against one another within that state, though to the end they did so without posing a serious threat to the dominant position of the Führer.
⁴⁵
A constitution in the usual sense no longer existed, even if the Weimar Constitution of the Reich was not formally abrogated. National Socialist legal literature did try to combine a few so-called “basic laws” into a constitution,
⁴⁶
but this normative framework was not intended to impose any sort of self-restraint on the exercise of power. Rather, a lack of rules and a hostility to the law increasingly dominated the scene. Alongside the law there were “arbitrary measures”
(Maßnahmen)
and “Führer’s orders,” some of which were no longer even published. Areas in which the application of the law was “normal” stood alongside arbitrary terror.
⁴⁷
The move to make the remaining normative guarantees of the law dependent on the concept of the “welfare of the national community,” which could be defined however one wanted, was deliberately used by the regime as a way of generating fear. Step by step the “dual state” (E. Fraenkel) was turned into the “SS state” (E. Kogon). Acts of state bound by the law were replaced by a militaristic or pseudo-militaristic dynamism, which was driven by vague imperialistic goals and accompanied by increasing problems of self-regulation.

As was to be expected, constitutional scholars reacted in various ways to these developments.
⁴⁸
Some had to flee (H. Kelsen, H. Heller, G. Leibholz, E. Kaufmann, H. Nawiasky), and the older generation withdrew (G. Anschütz, R. Thoma, H. Triepel, R. Smend). A few established scholars (C. Schmitt, O. Koellreutter, E. Tatarin-Tarnheyden, H. Gerber) and a whole series of younger university teachers (E. Forsthoff, E. R. Huber, G. A. Walz, Th. Maunz, R. Höhn, E. Küchenhoff, P. Ritterbusch) declared themselves in favor of National Socialism—whatever that may have meant concretely.
⁴⁹
No significant works comparable to those of the 1920s were published on the theory of the state or constitutional law, with the possible exception of the summarizing and synthesizing book of Ernst Rudolf Huber,
Verfassungsrecht des Großdeutschen Reiches
(Constitutional law of the greater German Reich [1939]). In the end the voices that spoke about
constitutional law fell silent. Those authors who did not stop publishing altogether chose innocuous topics in legal history, international law, and administrative law.

2. Closely linked with constitutional law were fundamental violations of the principle of equality through the
disenfranchisement of minorities
. This began when the regime revoked the citizenship of its opponents.
⁵⁰
Soon after came the first discriminatory and persecutory measures against German (later also European) Jews, as well as against other political, religious, or racial minorities.
⁵¹
These measures intensified from a series of cunning and insidious acts of disenfranchisement and humiliation (confiscation of property, compulsory levies, “Aryanization” of businesses, forced adoption of the first names “Israel” and “Sarah” for Jews, wearing of the yellow star, and so forth) to a state-organized pogrom in 1938 (Kristallnacht) and the murder of millions in the extermination camps.
⁵²
Until the gruesome final phase, in which disguise seemed superfluous, all discriminatory and disenfranchising measures were enacted within the forms of the law; they were published and commented on by jurists. The reasons hitherto given to explain at least the judiciary’s role in the injustice—the anti-Semitism that pervaded bourgeois circles, the coming together of legal positivism and the “subservient German spirit,” as well as the latent and common readiness of majorities to oppress minorities—shed only a partial light on the phenomenon.

3. In most of the traditional areas of the law, the National Socialists were initially confronted with the problem of having to govern with the existing law and judicial apparatus without any mature concepts of their own. One exception was the field of
agrarian policy
. Drawing on older theoreticians (G. Ruhland), they had already worked out a concept of state guidance with a corporative structure, price controls, and market guarantees.
⁵³

4. The
judicial system
was the target of the very first concrete actions. These actions were aimed at personnel policy and at providing guidance for the “cleansed” judges by educating them ideologically through “governing principles.”
⁵⁴
The principles laid down by the Reichsjuristenführer (leader of the jurists of the Reich), Hans Frank, on January 14, 1936, were the official line: “The basis for the interpretation of all legal sources is the National Socialist ideology, particularly as expressed in the party program and the Führer’s statements. When it comes to those decisions by the Führer that are couched in the form of a law or a decree, a judge has no right of judicial review. A judge is also bound by other decisions of the Führer, insofar as they give unequivocal expression to the desire to establish a law.”
⁵⁵