The Law Under the Swastika (13 page)

A look at the field of Germanic law
⁷⁷
provides negative proof. After 1933 legal historians of Germanic law could feel the wind blowing their way. Especially since the political thinking of most of them was probably predominantly German-national, they often drew inspiration from the national version of the youth movement,
⁷⁸
and they demonstrated by their choice of topics that they moved overwhelmingly along the paths charted by scholars from Beseler to Otto von Gierke, Amira, Brunner, and Schröder.
⁷⁹
The Germanists now felt validated and encouraged, even if they objected to this or that manifestation of the Nazi state. Herbert Meyer (1875–1941), for instance, was later described by his former student Krahwinkel as one of those “Germanic enthusiasts who believed the appearance of the Third Reich would finally bring them the recognition they were hoping for.”
⁸⁰
In 1948 Hans
Thieme said in a self-critical reflection: “We were tempted more than the Romanists, who were from the beginning sulking on the sidelines.”
⁸¹
He had good reason to say, somewhat apologetically, that experts know “our writings also contain some things we now wish had remained unwritten.”
⁸²

The study of Germanic law was not suppressed in the Nazi state, it was—much worse—hardly taken note of.
⁸³
It played no role of any significance either in the application of the law or in legal policy.
⁸⁴
When a National Socialist Amtsgericht (district court) judge invoked historical arguments in an effort to replace monogamous marriage with concubinage, he became the laughingstock of his colleagues, even of those who agreed with him politically.
⁸⁵
On the whole Hitler’s saying set the tone: “These professors and ignoramuses with their Nordic myths mean nothing to us.”
⁸⁶

Of course, one must beware of claiming that none of the literary creations of legal historians had any political effect. Scholarly writings share the responsibility for the overall intellectual climate in which political processes take place, especially in countries with a traditional orientation toward and faith in science and scholarship, as was true of Germany. In the case of National Socialism, we must add the fact that one of the most important Germanists, Karl August Eckhardt, was closely connected with Heinrich Himmler. As a result, Germanic scholarship (in the SS research and teaching society Ahnenerbe) and research into Germanic tribal legal codes developed a relationship to the death machinery of the SS similar to those of anthropology and “racial science”
(Rassenlehre)
⁸⁷
Certainly, Eckhardt’s calls for the “elimination of degenerates” (by which he meant homosexuals) did not, in the strict sense, cause the internment of homosexuals in concentration camps, but the policy of “elimination” that was practiced did rest on a foundation of approval by the bourgeois elites. Without this approval, which was continuously percolating out through published opinions, the regime would undoubtedly have developed differently; at the very least it would have concealed its actions even better than it did. The reality of protests from the churches in the case of the “euthanasia” campaign has shown that this subterranean contact between the rulers and the ruled did function.

Still, “normal” Germanic scholarship existed on the sidelines more or less ignored, neither threatened nor courted in any special way. As a discipline it had no cause to undertake fundamental reflections on where it stood. Heinrich Mitteis confirmed this in 1947 when he said that legal history—from his perspective, the Germanic branch—“has not yet become a problem unto itself; it has behaved with greater indifference
toward methodological questions than other fields of the humanities.”
⁸⁸
If this assessment is on the whole true—leaving aside individual studies of great merit—one likely reason is that Germanists did not feel the challenge that was directed at Romanists. Scholars of Germanic law, among whom the old battle lines of the nineteenth century were still in place, even if in a muted and “enlightened” form, had no reason to be particularly annoyed with the Nazi state, especially if they were able to continue their research in peace. There was, in any case, no talk about a “crisis” in Germanic legal history.
⁸⁹
Herein lies the reason why we cannot speak of epochal “advances” in this field, despite the assiduous broadening of the available sources, despite penetrating studies on the Middle Ages, and despite the continuation of legal archaeology and the study of legal folk traditions.
⁹⁰
The only work with a new perspective and deep resonance that was published during these years, Otto Brunner’s
Land und Herrschaft
,
⁹¹
came as a challenge from outside the field.

FOUR
Community and National Community
(Volksgemeinschaft):
Reflections on Legal Terminology under National Socialism

In 1934 Ernst Forsthoff wrote: “Every intellectual-political epoch develops a language appropriate to its thought. A political way of thinking reveals its superiority most clearly through its ability to establish its terminology as universally valid and accepted as a matter of course.”
¹

If we examine legal terminology between 1933 and 1945 from this point of view, we note two things: a quick penetration of new National Socialist terms into the old conceptual world and a remarkable resistance to all attempts at innovation. The contradiction between these two observations is more apparent than real, and it is revealing in two ways. First, experience has shown that the quarrel over language is usually a reflection of struggles over ideas and real interests. By examining the development of certain terms, their use within the language, their frequency, and the contexts in which they are embedded, we can gain insights into their underlying ideology.
²

Second, a legal-historical analysis of the terms used in legal texts between 1933 and 1945 is indispensable for the self-conception of jurisprudence today, which uses these or similar terms every day without being aware of their historical use and semantic associations. All this becomes especially apparent with the term
community (Gemeinschaft)
. After 1945 it played an important role in the field of labor law, which preserved a National Socialist tradition of community metaphors and blended it with the structurally similar social doctrine of the church, especially when it came to the question of the legal qualifications of contracts of employment. Sometimes employment was described as a community of personal law, sometimes as a community-establishing contract or a contract with communal elements.
³

In the constitutional law of the Federal Republic, as well, the term
community
appears in a variety of contexts. For instance, the Federal Administrative Court (Bundesverwaltungsgericht) drew on the so-called
“community clause” in interpreting the limits inherent in the basic rights. This clause maintains that a basic right cannot be invoked “if, by doing so, protected legal interests necessary for the existence of the community are endangered.”
⁴
In another decision by the Federal Administrative Court, the “idea of community” was first read into the Basic Law and then used as the basis for a legal argument. This is the crucial passage:

The meaning of the idea of community, as well, which has found expression in the basic principles of the social
Rechtsstaat
(arts. 20 and 28) and in the social embeddedness of property (art. 14, sec. 2), does not exhaust itself in the provision of material benefits. Rather, it demands that those who participate in the community be recognized as the bearers of their own rights who in principle are equal before the law (see also article 3), and that no essential segment of the people in this community be without rights with respect to its existence.
⁵

The “idea of community” is invoked most frequently in interpreting the clause of the Basic Law that obliges the right of property to take the common weal into consideration (art. 14, sec. 2). A modern commentator has actually called this article “the bridge to communal thinking.”
⁶
For now we shall leave open the question of what is meant by the term
community
that is used in such different contexts. The mere fact that it is used unabashedly justifies an examination of its history. The following account will look first at the general trend that sought to make the idea of community the foundation of a National Socialist jurisprudence (I). Next it will indicate the consequences of this idea in different areas of the law (II), particularly in constitutional law (III, IV). Finally, it will examine the function and consequences of the idea of community in the National Socialist state (V).

I.
Legal discussions after 1933 were dominated—apart from the eradication of all liberal, individualistic, and democratic thinking—by the struggle against the nineteenth-century system of legal concepts.
⁷
That struggle was driven by claims that the existing system was alien to the nation and of un-German, Roman abstractness, that it had prevented “real” decisions, that law and ethics had become dissociated, and so on. A completely new system of law was therefore necessary. One way to restructure the law was to introduce new terms and either stop using old terms or reinterpret them. As B. Rüthers has shown,
⁸
reinterpretation proved a far more effective method for implementing the ideological change than the introduction of new terms and concepts. Still, from the beginning the National Socialists placed great stock in the introduction of new terms in all spheres of
life as a symbol of the “new thinking.”
⁹
In legal terminology two contradictory tendencies emerged in the process, tendencies that reflected the revolutionary and the conservative-authoritarian components of National Socialism itself. Younger, politicized scholars pushed for the introduction of the new terminology while at the same time fending off attempts at formulating definitions, on the grounds that they wanted to keep the legal order “fluid” and open to future political decisions. Jurists who were well versed in so-called conceptual jurisprudence (usually the older ones) were dubious about attempts to establish the terms
nation, Führer, clan, honor, blood and soil, Weltanschauung, race, community
, and
national community
as “legal concepts.” This generational conflict, fanned by the revolutionary arrogance of many young scholars, complicated the already existing political and scholarly differences.

The term
community
or
national community
assumed a prominent place in the discussion. It predated National Socialism as the favorite term of philosophical irrationalism and political conservatism, which seized upon it beginning with the programs of the youth movement and especially the “communal experience” of August 1914 and the quickly mystified “battlefront community.” “The idea of a communal culture,” according to Gustav Radbruch, “emerged first of all from the youth movement—next to Socialism the strongest intellectual movement of our day. Unlike the uproar of earlier generations of young people, this revolt of youth is not a call for freedom, but rather the opposite: a renunciation of the excesses of individualism and an embrace of community—that is, the longing for new bonds, bonds of custom, style, culture, of camaraderie, Führerdom, and obedience
[Gefolgschaft]
.”
¹⁰

Karl Sontheimer has called the concept of community “one of the magic words of the Weimar period.”
¹¹
He is right, for the idea of community was already invoked before 1933 in countless publications that were in part ethnic-nationalistic or socialist in content, in part religious or philosophical. Radbruch, a contemporary of keen mind and balanced judgment, noted that “new words are gaining an increasingly deep and warm resonance, above all the word ‘community.’”
¹²
Both Catholic social doctrine
¹³
and Protestant ethics
¹⁴
used this originally sociological term.
¹⁵
Because it was employed primarily in an antirationalistic and antidemocratic sense, it was almost inevitable that the term would also appear in the vocabulary of National Socialist propaganda, from where it made its way into legal terminology after 1933. From that point on, hardly any author forgot to point to the “now prevailing idea of community” and to draw from it the legal consequences for whatever problem was under discussion. Hans Frank, Reich Minister and President
of the Academy for German Law, said in 1934: “We start from the law of the community, and this communal law is the real inner reversal of our legal point of view and our legal system.”
¹⁶
This programmatic declaration became a topos of legal argumentation, as the titles of relevant books and articles show.
¹⁷
And in the language of legislation after 1933 there appeared—alongside older terms, such as
common weal, common welfare, common interest, well-being of the people, common benefit, the best for all
¹⁸
—new creations, such as
national community, community of national comrades, business community, traffic community, household community, air raid protection community, physical education community
. Among the new terms,
national community
topped the list in frequency of use.
¹⁹

A first overview of legislation and the professional literature reveals that the term
community
and its specialized derivations were used in such multifarious ways as to raise legitimate doubts whether we can even associate them with a specific meaning derived from the word itself. Philosophical, sociological, religious,
²⁰
legal, and propagandistic contexts imparted all kinds of nuances to the term
community
and turned it into a dubious tool for jurists at the time. E. R. Huber, for instance, warned of the danger that the term “could degenerate into an abstract commonplace because of its frequent and undifferentiated use.”
²¹
C. H. Ule spoke in a similar vein: “The concept of the ‘concretely visible community’ has become a true slogan. It is not possible to associate a sensible meaning with it, since there are no ‘abstract communities’ and a community itself can never become ‘visible’.”
²²