The Law Under the Swastika (14 page)

However, these concerns involved more than the term
community
, which had already been talked to death in the books and journalism of the Weimar period. Another issue was the admission of propagandistic phrases into legal terminology—a practice that was in general frowned upon. As a consequence of this phenomenon, the lines between the application of the law and legal policy became blurred. Terms from the
Kampfzeit
(“time of struggle,” referring to the early days of the Nazi movement in Munich), “which expressed the feeling of dissatisfaction with the existing situation, but are not yet symbols of realities that have already been achieved,”
²³
created a sense of terminological uncertainty in many jurists. For instance, as early as 1934, H. Helfritz voiced this criticism: “We are currently living in a confusion of legal terms that couldn’t conceivably be any worse for the field.” Further, “it is simply unacceptable that propaganda expressions are taken into the field uncritically, and that scholarly terms are given a different content than previously to make them serviceable to propaganda.”
²⁴

Difficulties of this kind, which a legal system with traditional usages
of long standing tends to encounter when the political foundation changes through revolutionary upheaval, occurred in all fields of the law under National Socialism/Before discussing the introduction of the concept of community into constitutional law, I shall at least indicate the repercussions of communal thinking for other fields of the law. My comments will be sketchy, their purpose being to make clear that this was not a question limited to constitutional law, but a problem basic to the entire legal order.

Since the goal in all areas of the law was to refashion the foundation, the core ideas were very simple, but the implications for any particular problem were complicated. For it was not always the case—and this seems to have been a typical feature—that the consequences were also “community related.” Rather, in many instances the old solutions, discredited as liberal, were retained in the new dress of communal thinking. That was especially so with authors who adopted the topos of communal law outwardly while in reality advocating the preservation of the old legal order. But even among authors who were emphatically looking for new solutions in line with National Socialist thinking, the traditional legal system sometimes won out, thanks to its resilience as the
ratio scripta
.

Whenever “communal thinking” was mentioned in the literature, a few emotion-laden and vague ideas made their appearance. For the moment we may summarize them as follows: After the victory of National Socialism, the German people are no longer split into different groups, such as classes, confessions, or rulers and ruled. Instead, they form a community organically structured into subcommunities. The state, as the instrument of leadership, must serve this community. The law, as part of order to be developed out of the “essence” of the community, is articulated by the leadership. The opposition between public and private law, between the individual and the state, is dialectically “transcended” in communal law. Since trust prevails in the community, the call for supervision of the leadership is a breach of trust. The community does not discuss, it marches.

II.
Wolfgang Siebert’s call for a struggle “to loosen and transform concepts and doctrines which, because of their abstract and normative content, are obstacles to the penetration of the communal idea and to the concrete orders that are based on it,”
²⁵
was not limited to civil law in the narrower sense. Just as the community sought to embrace all national comrades and all spheres of life with its totalitarian claim, the liberation from abstract-universal concepts was thought of
as “total.” These concepts were to be replaced by “reality-related ideas
[Sinngebilde]
” (K. Larenz).
²⁶

The speed with which the concept of community pervaded different areas of the law varied. Experts also held divergent opinions on which area was further along in the process. There was consensus, however, that within civil law,
property law
had most thoroughly absorbed the communal idea. As evidence jurists listed, among others, the Hereditary Farm Law of September 29, 1933; the law limiting the rights of neighbors with regard to businesses that were particularly important to the strengthening of the nation (promulgated on December 13, 1933);
²⁷
the law regulating the land needs of the authorities (promulgated March 29, 1935); the real estate law of June 26, 1936; and the legislation on tenant law.

These and other laws created what were in part extensive restrictions on the law of private property in favor of the “community.” In particular, the state’s obligation to pay compensation was limited with the argument that the right of compensation had already been “inherently” curtailed for an individual through the bonds of community.
²⁸

The communal idea seemed more difficult to establish in the
law of obligations
. Still in 1936 W. Herschel noted that “the idea of community is making advances in the area of the existing law of obligations.”
²⁹
H. Stoll, for instance, whose background was in the school of
Interessenjurisprudenz
, sought new “community related” solutions.
³⁰
However, Stoll was essentially activating ideas that had previously been represented in the concepts “good faith” and “common decency.” These maintained that the subjective rights granted by the law could not be exercised without restraint but had to respect an inherent limit that was drawn either by the debt relationship itself or by the public interest. In setting that limit, jurists now drew increasingly on the “needs of the national community.” Some even characterized the debt relationship as a “community relationship” with elements of public law obligations. Stoll, however, did not go that far. While he did pay wordy reverence to the idea of community, he did
not
elevate the relationship between debtor and creditor to a community relationship.
³¹
Here as elsewhere, we see that theorists, because of the inertia of the material they were dealing with, for the most part had to refrain from entirely new conceptualizations and content themselves with a rhetorical shift of accent.

The introduction of the idea of community occasionally led to strange results in some areas of civil law. For instance, in
compensation law
Rothe criticized the “unwillingness to accept a misfortune that
simply happened, and the desperate effort to compensate oneself at the expense of others.”
³²
Consideration for the idea of community, he felt, should reduce suits for damages, since the filing of an unjustified suit was an offense against the national community.

H. Roquette’s work in
landlord and tenant law
was more solidly grounded. He noted three new ethical ideas in this area of the law (those of community, duty, and welfare) and sought to deduce legal consequences from them—a procedure that is also methodologically revealing for its matter-of-fact conjoining of ethical and legal argumentation.
³³
The idea of community, Roquette maintained, abolished the tensions between tenant and landlord, for the house community comprised both parties and called for cooperation based on mutual trust. In this respect the invocation of a higher community, in which ethical obligations were to tie the hands of economic adversaries, turned out to be an appeal for harmony. Roquette admitted that the main value of the idea of community lay in the ethical directive that the national community should avoid internal conflicts as far as possible.

This tendency emerged even more clearly in the area of
labor law
. One of the core questions in this area, especially in the theoretical discussion of jurisprudence, was the continuing applicability of paragraphs 611 and following of the Civil Code, which, after the promulgation in 1934 of the Law on the Organization of National Labor (AOG),
³⁴
could at best claim limited validity. The regulation of the employer-employee relationship in these paragraphs (contract of employment) had been regarded as unsatisfactory long before 1933, since it did not do justice to the importance of labor law, either linguistically or in terms of content. The development away from the Civil Code was strongly supported after 1933 by the Reich Labor Court and jurisprudence. Some jurists even believed they could dispense with the legal figure of the contract, since labor law was beginning to show increasingly strong traits of public law under the reign of the idea of community.
³⁵
Following the victory of the idea of the (national) community, so the argument ran, the old conflicts between employers and employees were abolished in the factory (or plant) community and the national community. Both parties were obligated to work together in the business community for the welfare of the national community; the class struggle had thus been ended. One cliché in legal argumentation in labor law was the “renunciation of the individualistic attitude and the change to a communal attitude in the relationship between the manager and the factory personnel.”
³⁶

The factory community as “an association of social law determined by the common purpose of the enterprise and the benefit of the nation
and the state (§ 1 AOG)”
³⁷
thus pushed increasingly to the fore as a legal point of reference. In a phrase borrowed from Carl Schmitt, it was frequently described as a “concrete order” from which the new law flowed.
³⁸
Even more evident here than in landlord and tenant law is the desire to pacify society internally by bringing competing interests together into “communities,” thereby placing at the state’s disposal the energies that had hitherto been tied up in domestic politics. Thus wage freezes, the outlawing of strikes, and a drastic curtailment of freedom of movement were direct devices for taming class struggle, while Kraft durch Freude outings and a general mystification of labor were indirect ones. The bourgeoisie’s understandable desire to get relief from the pressure exerted on it by the workers was complemented by the state’s interest in domestic peace. In the process the idea of community became one of the primary means of giving ideological backing to direct interference in the right to strike and freedom of movement, and the suppression of wage demands. An intensive communal education was to make this idea so strong that the state could do without external methods of compulsion. However, the authorities were realistic enough to include “relapses into the old spirit of self-interest and mistrust . . . especially on the question of pay” into their calculations.
³⁹

All advances in the sphere of social policy that were achieved after 1945 cannot conceal the fact that this National Socialist pattern also underlies the currently prevailing interpretation of the employer-employee relationship as a community relationship that obligates the employer to show “solicitude”
(Fürsorge
) and the employee to show “loyalty.” The same holds true for equating the desire of employers for consistent wages and the prevention of strikes with the “common good.” It has been widely maintained that the interpretation of the employer-employee relationship as a community relationship represents progress on the theoretical level. However, in my view, P. Schwerdtner has convincingly demonstrated that it is in fact a relapse into communal relationships that are bound to persons, compared to which the contract based on the law of obligations (despite the dangers for the weaker party) represented a liberation of the individual. Of course, to speak of progress or relapse in this sphere presupposes an a priori decision to regard the liberation of human beings from personal and material bonds as something valuable. National Socialist jurists and their successors in the field of labor law, however, made an a priori decision that was exactly the opposite.

It is widely known that the ideology of community and race had substantial influence on National Socialist
marriage law
. In accordance with the goal of “increasing and preserving the species and the race,”
⁴⁰
breeding was the dominant idea. The propagation of children became “a duty toward the true idea of kinship and the idea of community.”
⁴¹
These principles were embodied in the marriage law of 1938. Rüthers, in his 1970 study, compiled the effects of this law on the administration of justice in the courts of the Reich.
⁴²
His comparison of the decisions rendered by the Reichsgericht and the Federal High Court (Bundesgerichtshof) revealed that nearly identical argumentation led to different outcomes. The Reichsgericht, with the help of the argument that marriage was to serve the national community, developed a “moderate readiness to grant divorces”
⁴³
—that is, marriages of no use to the national community were dissolved fairly quickly. By contrast, the Bundesgerichtshof, which also argued that the ethical order of marriage served the meaningful structure of a higher whole to which individuals had to subordinate themselves,
⁴⁴
reached the opposite decision—namely, that marriage was fundamentally indissoluble. We have here an obvious example of how ideological a priori decisions can be retroactively endowed with a semblance of rationality with the help of techniques of legal argumentation.

As for the changes the idea of community brought with it in economic legislation, in particular cartel and energy law, all I can do here is refer readers to the relevant literature.
⁴⁵
The same goes for copyright law and commercial legal protection (patent law and laws on competition, trademark law, and design law).
⁴⁶
Some of the changes implemented were reforms long demanded and long overdue, which the parliaments of the Weimar era had not been able to accomplish. The idea that the rights of the individual had to be restricted in favor of the “community” established itself more or less strongly in all these areas of the law. If we examine this shift from the perspective of the dichotomy between private law and public law, we note an increasing expansion of the sphere of public law. And it must be strongly emphasized that this occurred without regard to ideological positions both before and after National Socialism, as Franz Wieacker has shown, for example, in the area of land law.
⁴⁷
The rapid growth of technology in all spheres of life, the rise in population, and the reconstruction that the states of postwar Europe had to accomplish were probably the main reasons behind this development.