The Law Under the Swastika (15 page)

The idea that the national community, as the highest interest protected by the law, had priority of protection was also behind the drive to transform
criminal law
. The rights of an individual involved in a criminal case and the idea of rehabilitation vanished almost completely before the call for “elimination” and “deterrence.” The common refrain
was that the “community-forming power of criminal law”
⁴⁸
could manifest itself only if one eliminated the incorrigible and deterred potential criminals, deterrence having become “respectable” again.
⁴⁹

At first National Socialist criminal jurists limited themselves to “emphasizing” the communal idea, which in this field of the law entailed tougher penalties, a shift from the culpability of an act to the culpability of the criminal will, the introduction of new offenses,
⁵⁰
the admission of legal analogy to the defendant’s disadvantage, and the elimination of the defendant’s procedural rights. The existing dogmatic devices were retained. However, it soon became clear that a consistent implementation of the communal idea also called for the development of new concepts. We encounter a first attempt at restating the existing system in the work of G. Dahm.
⁵¹
He made a fundamental distinction between treason and crime: “Treason destroys the community and dissolves the order. Treason dishonors the guilty person and expels him from the community . . . The case is different with the criminal. He remains subject to the law. His deed violates the order, but it still leaves open the possibility for the perpetrator to restore his relationship to the community. . . . Penal law ends where a relationship to the community is absent, where no order is involved.”
⁵²
This distinction corresponded to the penalties suggested by Dahm: ostracism for the traitor who had broken the bond between self and community, punishment for the criminal.

III.
Our survey of the effects of the communal idea in these different legal fields has shown that we are dealing with a basic ideological concept, and that the speed and effectiveness of its implementation varied with the special circumstances in a given field. More successful than the attempt to introduce the concept of community as a new term in the legal language was the method of merely setting it up as an ethical principle and using the tried and tested interpretive aids to derive new, “community related” meanings from the old, unchanged texts. It is not surprising that this realization has led to a loss of trust in the traditional, quasi-logical interpretive procedures of jurisprudence. The survey has further refuted once and for all the view—still widespread today—that there are nonpolitical fields of the law, by showing that the entire legal order was distorted under National Socialism. Naturally, this dependence of the legal order and its conceptual system on the political base manifested itself most glaringly in
constitutional law
, to which our analysis now shifts. As E. R. Huber wrote: “In constitutional law, in particular, the basic political currents
of the reality of the state are most clearly visible, and it is here that the old formal-logical and normative thinking will most readily be overcome by political communal thinking.”
⁵³

In 1933 constitutional theory, following a period of intense debate in the Weimar Republic,
⁵⁴
stood at the threshold of a new development whose contours nobody could divine. The prospects for new concepts in constitutional law thus seemed particularly promising. The basic discussion about the pros and cons of the parliamentary system was cut off. Those who continued to speak out in writing saw themselves directed to
commentary
on the transformation of the entire structure of the state, and to efforts at drawing theoretical distinctions between the concepts of state and national community, nation and “movement,” party law, Reich law, and so on. After what has already been said, it is hardly surprising that the idea of community took a prominent place in these discussions. The following questions became relevant: Is “community” usable only as a sociological or also as a legal concept? Does the word have a content that is verifiable in a legal sense? Can the concept of community, in particular, replace the traditional notion of the state as a legal entity, or should “communal thinking” find use only as an interpretive aid?
⁵⁵

Reinhard Höhn, who had developed his ideas of community as a constitutional theorist of the Jungdeutscher Orden (Order of Young Germans, a conservative bourgeois group)
⁵⁶
by positing an antithesis between bourgeois-constitutional democracy and “true Germanic democracy,”
⁵⁷
switched to the National Socialist camp in 1933 and became the champion of the communal idea in constitutional law. In so doing he resumed what Otto von Gierke, as early as 1902 in a completely different historical situation, had bemoaned as the “war of annihilation against the concept of the personality of the state
[Staatspersönlichkeit]
.”
⁵⁸
Höhn’s arguments with Wilhelm Merk, Ernst Rudolf Huber, and Otto Koellreutter are characteristic of the difficulties posed by the concept of community, and of the state of constitutional theory as such. As Hans Frank put it, constitutional theory should no longer be seen as a science “of the relations between citizens endowed with subjective public rights, on the one hand, and representatives of the state burdened with corresponding obligations, on the other. Rather, it must be seen as a theory of order based on the personal element of a nation’s loyalty in following the leader it has legitimated.”
⁵⁹

Höhn opposed everything he thought he could identify as “liberal thinking,” and in this he was right in line with the usual polemics against individualism and liberalism: “What needs to be done in constitutional law is to point out the individualistic aspect in all innovations,
to clearly bring out the opposing position, and thereby promote the whole.”
⁶⁰
Liberalism, individualism, and the traditional doctrine of constitutional law saturated by these ideas, became his sworn enemy, which had to be fought everywhere, but especially in the concepts of the “legal community” and of the “state and the public corporation as legal persons.” He therefore saw it as his main task to establish “community” and “national community” as basic concepts of constitutional theory, to “positivize” them, and thereby to eliminate from constitutional theory the now superfluous notion of public law as a legal person. Höhn summarized it this way: “The place of the principle of individualism has today been taken by a different principle, that of community. The foundation and cornerstone of constitutional law is no longer the legal person of the state; rather, the national community is the new starting point . . . The state as a legal person and the concept of community are mutually exclusive.”
⁶¹

These thoughts were by no means limited to Höhn. Th. Maunz, F. W. Jerusalem (whose assistant Höhn had been), and G. Küchenhoff also advocated them in similar form.
⁶²
However, Höhn’s debate with the literature on constitutional law shows he believed that he represented the communal idea in a particularly pure and consistent form.
⁶³
It is not surprising that in the process he lumped older authors like G. Jellinek, Kelsen, Heller, O. Mayer, and Anschütz together into the liberal-individualistic camp. But even authors who, he conceded, were already showing “communal” feeling, such as E. R. Huber, O. Koellreutter, K. Bilfinger, A. Köttgen, H. Gerber, U. Scheuner, and E. Tatarin-Tarnheyden, did not escape the charge that they wanted to cling to the basis of individualism, thereby misjudging or at least weakening the importance of the communal idea for the new constitutional law. The final verdict of this criticism was this: “The prevailing constitutional theory has been unable to this very day to break with the concept of the state as a legal person. Though it no longer emphasizes this concept, as it still did during Jellinek’s time, it has always retained it, and it forms the basis of its dogma.”
⁶⁴

Höhn’s criticism of constitutional theory was, in turn, the substratum of common clichés in the current of antidemocratic thinking. The crass antitheses between “liberal” and “authoritarian” and between “individualistic thinking” and “communal thinking,” on which this current was based, were derived from a literary tradition whose arguments and effects were already outlined in historical and sociological books.
⁶⁵
Projected into the legal reform and propaganda literature, these antitheses read as follows: German (Germanic, Nordic, Aryan) thinking is organic, concrete, close to the people and true to life, oriented
toward the “whole,” unifying, dynamic, synthetic, related to values and community. The opposite of this is “Roman-Jewish” thinking, characterized as liberal, rationalistic, positivistic, abstract-conceptual, individualistic, materialistic, rigid, constructed, alien to life and the people, analytic, nihilistic, corrupting, and so on. Typical of this approach, which bestowed negative attributes on the concept of the state and positive attributes on the concept of community, is a passage from an essay by Heinrich Lange:

Anyone who sharply juxtaposes that which separates our legal sensibility from Roman legal thinking will arrive at the following conclusion: Roman legal thought is individualistic and materialistic, the state is the absolute external apparatus of power; German legal feeling is directed toward connectedness
[Bindung]
, toward the community, which is the order of communal life composed of the various groups. The Roman divides the world into persona and res, starkly juxtaposing master and object; for the German the antagonisms
[Gegensätze]
disappear in service to the great tasks and values of the nation.
⁶⁶

The state, discredited as an “apparatus,” thus became the evil principle under whose rule a “genuine” national community could not be realized. As long as the antidemocratic movement before 1933 meant the despised Weimar state when it said “state,” the attacks on the concept of the state were driven by this negative feeling. After 1933, when the state and the national community had become identical, at least in theory, the attacks against the state become less intense.
⁶⁷
After 1933 the debate, now largely an academic one, revolved only around the theoretical ranking of the concepts of state and (national) community within the National Socialist theory of the state.

One of the arguments used in this debate was that Hitler himself had said the state was no end in itself but only the means to preserve and advance the nation.
⁶⁸
Höhn invoked it to criticize Huber’s thesis that only the state made the natural nation into a “political nation.”
⁶⁹
Here, Höhn argued, one could still see, shining through, the individualistic juxtaposition of a state capable of acting and the nation incapable of acting. This dualism was wrong, he maintained, because it did not correspond to National Socialist reality, which had already implemented the concept of community in its law.

It is true that the terms
community
and
national community
were used with increasing frequency in legislation after 1933. As I have indicated earlier,
⁷⁰
the term
national community
saw an almost inflationary expansion in usage. The following examples show that these phrases had two functions: to appeal to the conscience of the individual and/or to serve as the basis for encroachment upon his or her rights.

—In accordance with § 24 AOG, expert witnesses had to swear not to pursue any special interest and to serve only the welfare of the “national community.”
⁷¹

—One precondition for obtaining a government loan for young married couples was that the marriage was in “the interest of the national community.”
⁷²

—According to § 2 of the Law on the Hitler Youth, the entire German youth was to be educated “for service to the nation and the national community.”
⁷³

—According to § 15 of the Reich Notary Law, notaries had to exercise their office “for the benefit of the national community.”
⁷⁴

—The public prosecutor could intervene in civil legal matters in order to put forward “the position of the national community.”
⁷⁵

By contrast, the word
community
appeared much more rarely in legislation. In many instances it was used merely to stand for
national community
—for example, in § 10 AOG, which speaks of the “community of all national comrades”—or it served to designate smaller communities, as in the disciplinary laws of the Reich Labor Service
⁷⁶
or in traffic regulations, which were supposed to establish the “true community of all drivers and pedestrians.”
⁷⁷
The term
community
was not used at all in legislation in the sense we are interested in. Instead, when the intent was to describe the all-encompassing community, the term
national community
usually took its place. For instance, when Roland Freisler and Höhn argued that the concept of community had already made its way into
legislation
, they were forced to draw on relatively insignificant evidence: the preamble to the German Communal Regulations of January 30, 1935; the task of Reich Agriculture, described as “beneficial to the community”; the saying “common interest before self-interest”; the first three paragraphs of the AOG; paragraphs 1 and following of the German Civil Service Law; and the ordinance of the Reich Treasurer of the Nazi party of March 29, 1935, which spoke of the “National Socialist community.”
⁷⁸
These examples, which were unable to support the authors’ thesis, at least show how indiscriminate this method of furnishing proof was, and how unclear was the supposed “meaning” of
community
.

IV.
Höhn’s efforts to replace the legal person of the state with the concept of community were opposed especially by Wilhelm Merk and Otto Koellreutter. As early as 1935 Merk noted that Höhn’s attempt had failed, that he had prematurely cheered the “fall” of the legal person of the state.
⁷⁹
Merk argued that it had not been made sufficiently clear what liberalism actually was, and that the terms
community
and
leadership
, which were borrowed from the military
sphere, were not usable in the legal context. Citing many examples from constitutional and administrative law, he demonstrated that the concept of the state as a legal person continued to be indispensable—for instance, as an intellectual point of reference in civil service and police law, in finance law, and in citizenship law, as well as in the legal understanding of the Reich’s foreign relations.
⁸⁰
The critical voices of Helfritz, H. Reuss, Jerusalem, and G. Neesze in opposition to Höhn were convincingly summarized or anticipated by Merk, who argued that the concept of the state as a legal person—along with the consequences that flowed from it (the sovereignty of the state, hierarchical relationships in administrative law, the position of the head of state as an institution)—had not been abolished by the National Socialist revolution. For theoretical reasons the legal person of the state was indispensable also in the future.
⁸¹