The Law Under the Swastika (9 page)

The question to what end this illumination is pursued can be answered only by each person for him- or herself and on the basis of value decisions that are analytically irreducible. These value decisions can be based on the “historicity of our own existence”; on the need
for “man’s self-reassurance about his own ‘constituent elements’ of human existence, which he can grasp directly and which are self-discerning”;
⁴⁵
on the desire “to know how our troubles are related to the past . . . to see the line along which we may progress towards the solution of what we feel, and what we choose, to be our main tasks”;
⁴⁶
on a Christian decision of faith;
⁴⁷
or on “curiosity” (which is perhaps only a way of putting an arbitrary end to the search for reasons we can articulate). In each and every case, the answer is left to the individual scholar. The methods used, however, do not change with the answer.

TWO
Legal History during the Nazi Period: Outlines of a Scholarly Field

I.
No period of German history has been as intensely illuminated is as the notorious years of Nazi rule between 1933 and 1945. All branches of history in Germany and abroad have studied National Socialism, preserving and uncovering a range of material so vast it can no longer be absorbed by any one person. And the output is continuing with undiminished vigor: new books, essay collections, and articles are published almost every day. In future historical scholarship, too, the Nazi era will be a “past that will not pass.” Especially if it is true, as some have argued, that the real process of a thorough “historicization” of National Socialism has only just begun.

Scholarship on National Socialism from 1945 to today has by no means developed at an even pace. There have been phases of stagnation as well as “waves” and fashionable topics. That pattern reflects the interplay between the process of understanding and the various conditions that form the external framework of inquiry, an interplay that determines the history of every field of scholarship. Scholars themselves with their own private histories, the political and social context in which they move, and above all the chronological distance from the events have led to a constant renewal and transformation of scholarly interests and topics, of the kind of questions asked and the methodological approaches used.

All this holds true also for legal history. Beginning in about 1965, and with a noticeable lag behind the general historical sciences, it began to attract attention with contributions of its own. Scholars in this field, as well, are not as free as they themselves sometimes think when it comes to determining topics, formulating hypotheses, and selecting methodological approaches. Although it is true that scholars make their decisions as individuals, from a greater distance one can also see that they show a relatively uniform behavior as a group, and this allows us
to make general observations. For example, we note that in the first decades after 1945, the representatives of legal history at German universities did not speak about Nazi law and Nazi crimes or about the role of legal history during the Nazi era. While other disciplines took at least the first steps toward an accounting of their past,
¹
legal historians remained virtually silent. The first pertinent article appeared in the venerable
Savigny-Zeitschrift für Rechtsgeschichte
in 1986,
²
and not until the Twenty-seventh Conference of German Legal Historians in Bielefeld in 1988 was there a session with four brief papers on Nazi law.
³

There are reasons for this silence up to about 1965. Some legal historians, almost without exception scholars of Roman law,
⁴
had been forced to emigrate. It is readily understandable that these scholars could not or would not participate in elucidating the story of their own suffering by studying Nazi legal history. Another group of scholars, primarily students of Germanic law and constitutional historians (H. Meyer, K. A. Eckhardt, H. F. Feine, G. K. Schmelzeisen, W. Ebel, K. G. Hugelmann, E. R. Huber, G. Dulckeit, E. Schönbauer, and others), had become involved with the regime—some blatantly, others less so—and they kept quiet. Nobody could seriously expect that these scholars would now take an active role in analyzing their own mistakes.

However, the majority of legal historians, who had remained in Germany and had neither offered resistance nor compromised themselves significantly, could have focused their scholarly attention on National Socialism or at least openly rethought the role of their own discipline—or so one might have thought in retrospect. But such expectations, occasionally voiced by the younger generation, were very unrealistic. Several taboos stood in the way.

1. Legal history was used to studying older law. Traditionally, the focus of research in Roman law was on antiquity and the Middle Ages, with a gradual shift into the period of the
usus modernus
and pandectics. In Germanic law the focus was on the early and high Middle Ages, also with a gradual shift into the modern period. The science of Roman law had broadened into “ancient legal history” and had joined up with the science of Germanic law to form the field of the “history of civil law in the modern period.” Similarly, Germanic law and public law came together in the “constitutional history of the modern period.” After 1945 there was more than enough work in these fields, and all scholars gladly returned to their specialties as soon as conditions permitted. There was no concept of a “contemporary legal history” analogous to the field of “contemporary history.”
⁵

2. There were understandable inhibitions. We can understand why Georg Dahm, in the 1951 revised edition of his book
Deutsches Recht
(German law), cut the passages on Nazi law that had appeared in the 1944 edition and declared that “it is too soon to speak about National Socialism.”
⁶
However, it is more difficult to grasp why Robert Scheyhing, who was untouched by National Socialism, maintained as late as 1968 that “an examination from the perspective of legal history must not take into consideration the period of National Socialist rule in Germany, a period that belongs more to philosophers and legal theorists than to historians.”
⁷
It is equally difficult to fathom why Klaus Kröger’s book on modern constitutional history ends with 1933; the author argues that the traditional line of development of the German constitution was ruptured in 1933, making it unnecessary to carry the discussion further.
⁸
And Knut Wolfgang Nörr concludes his account of the “civil law of the Weimar Republic” by vigorously rejecting any ideas about legal continuity, which, he believes, have “infected” even some legal historians. Given the destruction of the
Rechtsstaat
by National Socialism, he goes on to ask whether we “might not be better advised to regard the Third Reich as essentially a space
devoid of law
.”
⁹

3. Additional obstacles to an examination of the role of legal history under National Socialism were deference to colleagues and the widespread human desire to deal with unpleasant topics only as much as is absolutely necessary. As a result there was only one brief debate on methodology in the years between 1947 and 1952. Heinrich Mitteis emphasized the “existential value
[Lebenswert]
of legal history”
¹⁰
within the framework of an idealistic program related to the present; Gerhard Dulckeit, who accorded Hegel central prominence much more openly than Mitteis, did much the same.
¹¹
Karl Siegfried Bader, Helmut Coing, Hans Thieme, and Franz Wieacker joined this debate, though without saying much about National Socialism.
¹²
Only Paul Koschaker, who already in 1938 had spoken courageously about the “crisis of Roman law,” dealt straightforwardly with National Socialism and its tendencies that were hostile to Roman law.
¹³
Afterward, however, the interest in methodological questions waned again. The initial impetus that Koschaker had given to a discussion on the topic of “legal history under National Socialism” went nowhere.

A generational succession occurred around 1965—when the so-called “Adenauer era” and the economic miracle came to an end, when the first spectacular cases of ministers and top officials with a Nazi past came to light and the Auschwitz trial was taking place in Frankfurt, when students at the universities were growing restless and the first interdisciplinary courses were organized.
¹⁴
Not until this time was legal history asked about its own past during the National Socialist period. Bernd Rüthers published his book
Die unbegrenzte Auslegung.
Zum Wandel der Privatrechtsordnung im Nationalsozialismus
(The unrestrained interpretation of the law: On the transformation of private law under National Socialism [1968]), and Dieter Schwab spoke on legal history at an interdisciplinary course in Gießen.
¹⁵
Other contributions followed,
¹⁶
and slowly the outlines of a large and neglected area of scholarship emerged behind the first sketches.

II.
What were the intellectual conditions under which the academic representatives of legal history entered the year 1933? How did the discipline react to “enticement and coercion”?
¹⁷
What impulses came from scholarship within legal history? How did the relationship to international scholarship change? What special accomplishments or “errors” can we take note of? Finally, how did the experiences of the Nazi period affect the new beginning of legal history after 1945? Was there in fact a “new beginning,” or was there quiet continuity under the new banner of liberty?

Answers to these questions would require extensive analysis of published works, large-scale studies of the scholars active in the field, and a comprehensive review of the history of the discipline at the universities. These studies, in turn, would have to be embedded within the broader history of scholarship; as far as Germany is concerned, they would also have to take into account the lines of tradition stretching back to imperial Germany
¹⁸
and the cultural and political conditions of the Weimar Republic. An important role would have to be assigned to the characteristically German distinction between scholars of Roman law (Romanists) and scholars of Germanic law (Germanists). This distinction not only concerned the topics of scholarly work, but also affected the “atmosphere” and “feel” of the disciplines. As a generalization one could say that the representatives of Roman law were far more international and multilingual, and more deeply rooted in the world of liberal-humanistic education, the latter in part due to a higher proportion of Jewish scholars. The broadening of the field of Roman law into “ancient legal history” (L. Mitteis, L. Wenger) in the 1920s precluded a narrow nationalistic perspective.
¹⁹

By contrast, the basic approach of the Germanists was national. Hans Planitz, for example, put it this way: “He who has a penchant for following the trail of the fathers, and who immerses himself lovingly in the Germanic pre-history, its life and law, will find in it the one thing he is really looking for: himself, his own nature . . . This inner way of seeking the unadulterated Germanic folkdom in history and showing the living working of German law in the past is the task of the legal historian.”
²⁰

Regardless of whether the “national approach” had an upper-middle-class liberal, a German national, or an ethnic anti-Semitic slant, it was typically concerned with the problem of drawing lines of demarcation to the outside and discovering “its essence.” It is obvious that the Germanists were far more susceptible to the conglomeration of emotionally charged words that was made up of ethnic-national, corporatist, authoritarian, and totalitarian elements and was establishing itself as the ideology of the state. Romanists saw a warning light in point 19 of the Nazi party program (which called for the replacement of Roman law by “German common law”) and therefore had to be at least professionally suspicious of the new regime. Germanists, by contrast, saw the Third Reich as the fulfillment of their frequently expressed longing for a revitalization of the national community and “Führerdom,” of the cooperative idea, as well as of the organic structuring of the totality of the nation and the ethnic-national character of the law. Fears of modern civilization and cultural criticism obviously merged here with a neo-Romantic idealization of pre-industrial conditions, with anti-Semitism, and with a corresponding mania for Germanic things.

However, below the political and cultural choices, which can be read at the surface level, there were also differences of basic philosophical orientation. Among legal historians that orientation typically finds its way into scholarship in a rather veiled fashion. One reason why it is difficult to decipher is that it is often an eclectic concoction of “everyday philosophies.” The Romanists, with their scholarly methodology focused on philology and interpretation, strike us as more sober and less speculative than the Germanists. The predominance in their discipline of topics dealing with the history of theoretical concepts in civil law may have reinforced this difference. The Germanists showed a more pronounced penchant for exerting political influence on the present, a tendency that was already visible in the nineteenth century. They also seemed to agree that the purpose of legal history was to derive from the historical material certain eternal “ideas,” which were then frequently applied to the situation of the day, often in bold speculative moves.
²¹

The legacy of German idealistic philosophy that was in this way projected into legal scholarship, or tacitly presupposed, played a major role in making National Socialism appear attractive. Anyone who accepted the proposition that one could assign to specific peoples certain “innate” ideas underlying their legal thinking had to set out “in search of the German essence” (Cl. v. Schwerin): “Finding the way back to
the spirit of German law is the most sacred duty, back to the ideas that underlie the law, ideas that cannot be lost as long as there are Germanic peoples.”
²²