Ingo MŸller, HitlerÕs Justice:
The Courts of the Third Reich, transl. Deborah Lucas Schnieder
(Cambridge, MA: Harvard University Press, 1991). xviii + 349 pages.
It is hard to know which is more difficult to read Part Two, ÒThe German Legal System from 1933 to 1945,Ó or Part Three, ÒThe Aftermath.Ó The former documents with careful detail the ÒcoordinationÓ (Gleichschaltung) of German lawyers, judges, law school professors, and legal institutions and the latter records with great specificity the story of the justification of that ÒcoordinationÓ in the period after the war. IÕm not certain I ever trusted lawyers, but now I am sure I donÕt. I tended to accept, too, the banality of evil, but now IÕm convinced because these men -- upstanding, decent, politically conservative, civil servants -- meant well. They were not sadists or fanatics; they were simply trying conscientiously to develop and implement the law. The problem of evil could not be better presented than in these pages.
The book is preceded by a clear exposition of the differences between the German and the American legal systems, indispensable for the English language reader. In Part One MŸller sketches the pre-Nazi history of the German legal tradition, pointing out that, in the early 19th century, German legal tradition was very much a part of the Enlightenment but that Bismarck, as part of his centralization of German government, purged the judiciary, made it part of the civil service, and established very long apprenticeships. These steps, combined with the low social status of the judiciary, had the effect of guaranteeing the social and political loyalty, i.e., the conservatism, of all legal personnel. During the Weimar Republic, the judiciary worked againt democracy and gave preferred treatment to the radical right on the principle that the presumed interest of the state stood above the law and hence crimes performed by the state are not crimes (23). The liberty given to Hitler during his trial and the very light and privileged sentence he was given, especially when contrasted with the courtsÕ handling of worker-inspired demonstrations (15-17, 20), were bad omens.
In Part Two, MŸller deals with justice in Nazi Germany. Four factors stand out. First, proper legal procedure was observed. Beginning with ÒThe Decree for the Protection of the German PeopleÓ in 1933 through ÒThe Law for the Protection of German Blood and German HonorÓ in 1935 to ÒThe Decree on Criminal Justice Regarding Poles and Jews in the Incorporated Eastern TerritoriesÓ in 1941, MŸller lists law after law, showing how each was enacted, theoretically justified, interpreted, and enforced. In some cases, the courts even anticipated laws and began rendering decisions before the laws were promulgated, e.g., in banning racial intermarriages (91) -- and this was considered exemplary jurisprudence (119). It was, then, the Òregular and uninterrupted administration of justiceÓ (125, referring to the enforcement of the eugenics laws) independent of moral content which characterized this period.
Second, ÒcoordinationÓ shaped the whole legal system during this time. Rooted in ÒThe Law for the Restoration of the Professional Civil Service,Ó Gleichschaltung included: declarations such as the one by a state association which Òplaced itself jubilantly and dutifully under the leadership...Ó; an obligatory oath to Hitler, together with the compulsory use of the Nazi salute; the ÒcoordinationÓ of the encyclopedias of law by Carl Schmitt (a still-recognized figure in jurisprudence) to include antisemitism as well as the new theory of law; and the fervent protection of pensions (36-45). Gleichschaltung was an achieving of Òunanimity of aimÓ by all legal personnel, so much so that attorneys for the defense spoke against their own clients if the latter had been charged as Òenemies of the stateÓ (64-5).
Third, loyalty to the FŸhrer was primary for all legal personnel -- as jurists, as civil servants, and as party members (in some areas 100% of the jurists were party members; the usual percentage was about 80-85%). Paragraph 19 of the AttorneyÕs Code contains the following oath: ÒI swear to remain loyal to Adolf Hitler, the leader of the German nation and people, and conscientiously to fulfill the duties of a German attorneyÓ (65).
The centrality of this loyalty led to two phenomena: [1] The jurist was obligated to read between the lines of the law, to anticipate the will of Hitler, and to use that subjective understanding as the ground for interpreting the law.
ÔThe whole of German law today ... must be governed solely and exclusively by the spirit of National Socialism ... Every interpretation must be an interpretation according to National SocialismÕ (60, quoting Carl Schmitt)
Ô... a more profound idea of legality ... that the state and the law acquire an identical meaning for the VolkÕ ... decisions should be handed down only by Ôone who lives in his people, feels with his peeople, and seeks justice where it is born, in the healthy common sense of the peopleÕ ... A judgeÕs Ôtrue nature and racial identity ought to make him a part of the community whch creates the lawÕ ... A judge should therefore approach a case with Ôhealthy prejudice and make value judgements which correspond to the National Socialist legal order and the will of the political leadershipÕ ... (71-3, citing legal authorities from that time).
... every judge must Ôplace the vital interests of the nation unconditionally above what is formally the lawÕ (52, quoting).
Ô... since a legally valid decree from the FŸhrer [existed] for these measures, there could be no futher reservations about carrying out the euthanasia projectÕ (128, quoting).
[2] The centrality of loyalty also led to the idea of Òenemies of the state,Ó i.e., of defining disloyalty to the FŸhrer and the party as a crime.
Ô... loyalty is the highest duty of the Volk and therefore a moral duty in National Socialist and German thinking ... According to these principles a violation of the duty of loyalty necessarily leads to the loss of honor. It is the task of the National Socialist state to require just expiation from the disloyal, who by their disloyalty have renounced their membership in the communityÕ (77, citing an official directive).
The Òenemies of the stateÓ principle was easily linked with the racial laws. It was the basis for a policy to deprive such ÒenemiesÓ of their civil rights (116) and to annihilate them (142-7). It was easily extended to include crimes of omission (134), Òunfounded suspicionÓ of disloyalty (138), and even Òpsychological supportÓ for resistance activities (160), including unintentional remarks made in private (147). It was also used to justify a series of appeals of sentences, each of which was intended to make the sentence more severe (129-34 on Òpleas of nullity,Ó 159, 181-2, 188-90). Of course, there were no appeals by victims (166). Finally, it led to the seizure, and often to the handing over by the court, of persons who were acquitted to the Gestapo for further Òtreatment,Ó the latter not being subject to the court system at all (174-82).
This, in turn, led to the blurring of the distinction between the lawful and the illegal (75); between petty crimes, misdemeanors, and felonies; and between attempting and committing a crime (164-5). It led, too, to a policy of Òthe apprehension of every last asocial elementÓ (133), to Òdecisions based less on law than on eliminating lawbreakersÓ (147).
Proper legal procedure, ÒcoordinationÓ in mind and act, loyalty to Hitler as the foremost interpretive principle of the law, and the concept of enemies of the state as those disloyal to Hitler who need to be severely punished and even eliminated -- these were the heartbeat of Nazi justice.[1]
Why? MŸller speculates that Nazi justice evolved as it did because these men were genuinely conservative and had been cultivated to be so by the legal system. The conservative and racist ideologies of the state were, thus, not foreign to them. He points out, too that, with the elimination of the Jews and Social Democrats early on, there simply was no other voice heard in Germany. Finally, he points to the friend-foe ideology of the law expounded by such an authority as Schmitt (296-7). While true, this is not an adequate analysis. Historians and political scientists may be wary of such explanations but it seems to me that a fuller analysis of the reasons behind Nazi justice lies in personal and in social psychology.
From the area of personal psychology,[2] we know that many people, especially those brought up in an authoritarian environment such as Germany, yearn for authoritarian structures in their personal and political lives. Such persons need the firm directiveness of a Nazi regime (MŸller notes this obliquely, 45). They submit willingly to the authority of the state, among others. Nazi jurists, therefore, really were ÒnormalÓ authoritarian-raised Germans and they ÒnaturallyÓ accepted the authority of the state in general and of its father/leader in particular. To defy the state was, therefore, a very serious crime, meriting severe punishment, even death. This is not to justify anything; it is to explain that the very tantrums thrown by Hitler were his charisma; they projected him as the father par excellence who had to be obeyed. As such, it took an exceptional person to resist; MŸller found only one true resistor, Lothar Kreyssig of Brandenburg (193).
From the area of social psychology,[3] we know that all people live in a series of hierarchies of authority comprised of parents, teachers, police, political, and religious authorities. ÒNormalÓ people have a tendency to follow these authorities unless the legitimacy of those authorities is severely challenged. Nazi jurists, especially in their capacity as civil servants, were part of such a hierarchy. Obedience was Ònormal,Ó especially since everything was rationalized and explained to them as being for the greater good, thereby reinforcing the legitimacy of authority. It was Ònatural,Ó therefore, to defer to superiors. For the same reason, the legal system deferred to the medical system in matters of eugenics (121). Again, this is not to excuse anything; it is to explain that the sheer momentum of social hierarchy worked in favor of obedience. And again, it took an exceptional person to resist.
To be sure, the factors identified here are not unique to Germany; they are, in fact, present in all societies. The needs of the authoritarian-raised personality and the momentum for obedience in all social hierarchy are present everywhere, even though they were especially strong in German culture.
Part Three deals with the aftermath of the war. The first Allied decrees closed all the Nazi courts and dismissed all Nazi personnel (201-2).[4] However, 80-100% of the jurists had been members of the party and hence no new courts could be set up. This, together with the evolving cold war situation, led to ÒdenazificationÓ which was quickly diluted again and again. Also, all legal personnel had been employees of the state and had pensions that had to be dealt with.
Three things happened. First, a series of rationalizations for Nazi behavior were generated: Nazi personnel were only obeying orders, even though the orders were criminal (247); they were only accomplices (246, 251-2); they really opposed the rules, but had to enforce them on pain of death (276-7); they were really loyal to the German state, and not to Hitler (206); and they were Òblinded by fanaticismÓ [sic] (277). A whole ÒlegendÓ about the legal positivism of German law and its regrettable politicization by National Socialism was developed and heartily subscribed to (220-2).
Second, offensive phrases were eliminated, often others were substituted. Thus, references to racist policies were deleted while references to loyalty to the FŸhrer were replaced by formulations of loyalty to the Constitution (227). ÒChristian natural lawÓ was developed as a ÒsuperpositiveÓ source of law, as ÒsupralegalÓ (223). However, much of Nazi legislation and precedent was kept; the Òimprovements in criminal lawÓ from the Nazi period were retained. Thus, laws against homosexual behavior, women (224-5), political dissent, and abortion, and laws in favor of forced sterilization and severe punishment were preserved (223-30). In addition, concepts such as Òthe criminal personalityÓ and the ultimately subjective justification of judicial judgement were retained and the Òlanguage of servile obedience to the stateÓ was amply preserved (218). No Nazi decision has ever been simply declared null and void (287), not even the decisions of the political PeopleÕs Court (292).
Third, as a result of all this: those who had been victims were victimized again, their challenge to the past being forcefully rejected; those who had been perpetrators were reinstated; dissenters were vigorously punished; former Nazis were favored by Òextenuating circumstancesÓ; professors were reinstated and those exiled were never invited back; liability to trial was limited; reparations not granted; murderers tried, but not if their acts had been part of the Nazi system; etc. (235-60). Some true aburdities resulted, e.g., the post-war conviction for escape from prison of a man who had broken out of a Nazi prison where he had been condemned to death (241).
As a corollary, the Nuremberg trials were seen as Òrevenge and retaliation, not justiceÓ (242) while judges in communist Germany were held strictly accountable for their ÒcoordinationÓ with communist ideology (279). In all, a story of moral corruption so pervasive as to leave one shaking oneÕs head in astonishment.[5]
Moral horror admitted, the text cries out for explanation. Why was everything swept under the rug, the past denied, and the perpetrators rewarded? Again, the answer from personal and social psychology seems to me to be the most informative: Persons raised in authoritarian environments are obedient even when they do something illegal; they have done no wrong and cannot admit wrongdoing without bringing into question the very structure of their worldview. They have to rationalize. And, persons who exist in a hierarchy of authority, particularly if it is a strict one, are doing the right thing when they conform to what is expected of them; they have done no wrong and cannot admit wrongdoing without upsetting the whole structure of society. They, too, have to rationalize. It may be immoral, but it is Ònatural.Ó
The question of how to raise people in a non -authoritarian environment, together with the problem of how to teach people to morally resist the usual hierarchy of social authority, is a very serious issue. It is not the issue of this book or this review.
In a holocaust class years ago, I sent a student to write a paper on lawyers in Nazi Germany. She returned upset; nothing was available to her. Now, we have MŸller; now, we have no excuse for not knowing. MŸllerÕs book is a shock to our sensibilities, but a needed shock. It is factual, detailed. It does have a generally ÒliberalÓ slant; but, better that than the slant of the books that preceded it which whitewash the German legal profession.The very banality of the process MŸller describes is the most shocking lesson, as was ArendtÕs observation decades ago.[6] It deserves much further study.[7]