The Law Under the Swastika (20 page)

Journals

II.
Journals on public law continued to be a significant factor in shaping the scholarly discourse. As visible bastions of influence on the field, they immediately fell under the control of publishers regarded as reliable by the Nazi party.

1. In
Archiv des öffentlichen Rechts
, the founders Felix Stoerck and Paul Laband were no longer mentioned after 1934. Heinrich Triepel, Rudolf Smend, and Johannes Heckel left in 1935, Albrecht Mendelssohn-Bartholdy in 1934. Koellreutter, who had been co-publisher after 1921 and now, as a National Socialist, assumed a key post, was joined by Hans Gerber, Franz Albrecht Medicus, and Helmut Nicolai. Only a year later, after becoming involved in a conflict with the party as President of the administrative district of Magdeburg, Nicolai left.
²¹

2. Parallel developments took place at the
Preußisches Verwaltungsblatt / Reichsverwaltungsblatt
(1879–1943) and the
Verwaltungsarchiv
. Heinrich Lindenau, Gerhard Lassar, and Hans Peters left as early as the end of April 1933; Georg Kaisenberg followed in October. The new editors, Adolf Mirow, Heinrich Lammers, Koellreutter, Hans Pfundtner, Medicus, and Nicolai, guaranteed close adherence to the party line. Here, too, Nicolai made only a guest appearance, remaining until February 1935.
²²
In the
Verwaltungsarchiv
, Erich Kaufmann was pushed out, along with Lassar, Peters, and Lindenau. Their place was taken by the same editors who now ran the
Reichsverwaltungsblatt
.

3. The
Bayerische Verwaltungsblätter
, under the new name
Deutsche Verwaltungsblätter
(1934–1937), retained Ottmar Kollmann, who had been acting editor since 1925.
²³
However, orthodox National Socialists, such as Walther Sommer, appeared in its circle of “contributors.”
²⁴

4.
Deutsche Verwaltung
, a continuation (from 1923) of the
Mitteilungen des Reichsverbandes der akademischen Finanz- und Zollbeamten
, was for all intents and purposes a new National Socialist journal for Nazi propaganda in administrative law. It was the mouthpiece of the group “guardians of administrative law” (Verwaltungsrechtswahrer, the terminology used after 1939) in the National Socialist Lawyers’
Association. As Nicolai explained its purpose in the foreword: “It is meant for leisure hours, for deeper reflection . . . for politics, for world view . . . Administrative jurisprudence proper shall be left to the existing journals.”

However, as in other areas of the law, a process of consolidation began. In 1938
Deutsche Verwaltung
was expanded into the central organ of administrative law. It took over
Reich und Länder
as well as
Deutsche Verwaltungsblätter
(the old Bavarian
Blätter für administrative Praxis
), and after 1939 the
Württembergische Zeitschrift für Verwaltung und Verwaltungsrechtspflege
(in existence since 1908). From 1935 onward Staatssekretär Wilhelm Stuckart was the editor.
²⁵
He had replaced Nicolai, Frank’s close collaborator.

5. Next to these central organs, the journals for state administrative law lost in importance. Those not absorbed into the journals
Deutsche Verwaltung
(Bavaria, Württemberg) or
Reichsverwaltungsblatt
(Prussia) were little more than official information bulletins (
Sächsisches Verwaltungsblatt
[1921–1943],
Zeitschrift für badische Verwaltung und Verwaltungsrechtspflege
[1869–1940]).

6. We should also mention, as new National Socialist journals in the narrower sense,
Zeitschrift der Akademie für Deutsches Recht
and its
Jahrbuch
, as well as the journal
Reich-Volksordnung-Lebensraum
. While the
Zeitschrift der Akademie
functioned as a connecting link between traditional scholarship and a National Socialism of the Frank type and carried few topics on administrative law,
Reich-Volksordnung-Lebensraum
was started up as a forum for geopolitics and administrative law with an unequivocal National Socialist staff and approach. It was here, among other places, that the planned “governmental reorganization of the East” was prepared in the media.
²⁶

The Debate over Administrative Law: An Outline

III.
The generally accepted starting point for all reflections on administrative law after 1933 was the presumption that there existed a deep inner chasm between the liberal past and the authoritarian present. A “revaluation of all values” seemed to be under way. The national community was to take the place of the totality of state citizens, “community” was to replace the concept of the state, and the place of the individual was to be determined primarily by duties, not by rights.
²⁷

Writers accordingly attempted to formulate the purpose of administration no longer in negative terms—as governmental activity other than legislation and the administration of justice—but as an activity ultimately oriented toward fulfilling the communal purposes of the “totality
of the nation.”
²⁸
Utility for the “whole” became the dominant purpose and the new center of gravity for thinking about administrative law: the preservation of legal boundaries and the protection of basic rights and of subjective-public rights, as well as the supervision of administration by independent judges, were no longer ends in themselves but means. At best, they could be defended by showing that the goals of the national community would be more readily attained by preserving them than by not preserving them. For many, the use of an idealistic vocabulary
(community, wholeness, organism, essence, living forces of volkdom, concrete order)
concealed the totalitarian character of the new concepts of law. Because everything was destined to serve as the means to the “common good,” which was actualized by the will of the leaders, administrative law and the science of administrative law lost their autonomous character. “Not only constitutional law, but administrative law, too, must vanish, because the state and the age from which administration has until now drawn its norms have vanished.”
²⁹
Or more directly still: “A healthy administration has nothing at all to do with paragraphs.”
³⁰
If administration became the “creative act of the leadership,” then administrative law would tend to become merely a collection of inconvenient formalities that one used either because one had not yet “overcome” the remnants of bourgeois thinking, or because modern mass administration apparently could not get by without such formalities.
³¹

This already hints at the dilemma in the discussion over the ways in which administration was bound by the law. Those authors who insisted on the continuing validity of the postulate that administration was bound by the law had to admit that the political and constitutional-legal situation of the nineteenth century, which had brought forth this idea, no longer existed. The dualism of bourgeois society and a monarchically directed executive had dissolved. The ideology of the “national community” tolerated no dualisms, no distrust of state authority, and no insistence that acts of intervention have a basis in law. At the same time, however, most authors tried to partially preserve this principle, though not by using the classic justification of the rights of the citizen, which can only be infringed upon “legally,” but by invoking the supposed will of the leadership and the benefits the national community would derive from an administration operating in accordance with rules.
³²
“Administration, as bureaucratic administration, is bound to laws and general rules. Only in this state can it show the advantages that make it indispensable in a modern mass state: precision of implementation, predictability, and steadiness in accomplishing the tasks entrusted
to it.”
³³
This position was weak, however, and could be undercut at any time by an alteration of the political premises.

The question was further complicated by the fact that the regime demanded a twofold approach when it came to the binding force of the law. As a matter of principle, administrative law from the period before 1933 was to be examined for its compatibility with a National Socialist ideology that was wisely left undefined. The new leaders recommended that these older norms be ignored or reinterpreted, and they rewarded such moves as “creative” acts. At the same time, newly established National Socialist administrative law was enforced by insisting that the law was strictly binding. Both approaches were pursued side by side, though in the early years the antipositivist circumvention of the older law was far more important.
³⁴
Administrative law played a pioneering role in this process: It encouraged the executive and the judiciary, to the extent that they were still hesitating, to “loosen the binding force of the law,”
³⁵
and it demonstrated through individual examples, in particular the general clauses,
³⁶
how practical results could be achieved by invoking the supra-positive will of the Führer, National Socialist ideology, or the benefit to the national community.

The conflict over the survival of subjective-public rights developed along much the same lines.
³⁷
As the cornerstone of liberal administrative law, subjective-public rights drew a lot of interest, and Theodor Maunz was soon able to assert that the “scholarly attack launched against subjective-public right concentrically from all sides” had been successful.
³⁸
The place of subjective-public rights was now taken by the “subordination of the person within the community”—that is, individual will and interest were formed into the will and interest of the totality, the
status negativus
was dissolved. What remained was the attachment of the individual to “concrete communities” and the “whole.” The individual had obligations as a citizen of the Reich, as a person who owed military and labor service, as a civil servant, a property owner, a factory manager, a follower
(Gefolgschaftsmitglied)
, or a lawyer
(Rechtswahrer)
, while rights against the state were theoretically abolished, though this did not mean that they disappeared.

It was only logical that the discussion about the continuation of administrative jurisdiction began soon after the debate over administrative law. The task of administrative jurisdiction was now to “secure the legal position of the national comrade,”
³⁹
not for the sake of the comrade, but for the sake of the totality. And it went without saying that “the administration of administrative law can never block or impede the decisions of the Führer.”
⁴⁰
The autonomous space left to the
individual had become—concurrent with the collapse of the idea of legal protection—a concession by the community that could be further restricted at any time. It was only inside this argumentative framework that the advocates of administrative jurisdiction could champion its preservation.
⁴¹
Here, especially, we find much tactical lip service to the system combined with a skillful defense of administrative jurisdiction, which on the whole was able to preserve a more liberal line than other jurisdictions.
⁴²

A second, more intensive, phase of this discussion took shape during the war, when administrative jurisdiction came under strong pressure in the wake of the regime’s general measures for more simplification and savings.
⁴³
The fact that the regime eventually established the Reich Administrative Court, which had already been provided for in the Weimar Constitution,
⁴⁴
and that a man contemptuous of administrative law was allowed to function as its President for a brief period
⁴⁵
is one of the contradictions that shaped the National Socialist system.

To summarize our observations to this point: Individual rights were replaced by collective duties, the binding force of the law and the protection provided by subjective-public right were destroyed, equality before the law came to an end, and a formal, predictable legal order was abrogated by a “prerogative state” that was sinking ever more deeply into chaos and thinking only along utilitarian lines. The balance sheet for the science of administrative law during these years thus appears wholly negative, for it contributed in essential ways to these developments. Those university professors, administrative officials, and judges who published and were permitted to publish—we are hardly in a position to judge the others—relativized and devalued the guiding principles of administrative law as they had developed from Otto Mayer to Walter Jellinek. The polemics against liberalism, individualism, and positivism paved the way for the subordination of administrative law to political purposes and the decisions of the political leaders.

Our perspective shifts, however, if we move beyond the framework of liberalism vs. collectivism
⁴⁶
and ask another question: whether the tools offered by the theory of administrative law after 1933 were better suited than the liberal administrative law of the 1920s for grasping certain phenomena typical of the modern interventionist and mass administrative state. We have already noted that the textbook theory of administrative law and administrative reality at the end of the Weimar Republic had fallen into a certain state of dissonance. The administrative law of public welfare was being neglected, expanding administrative fields (public commercial law, social law) were barely taken note of, and the dichotomy of state and society on which the theory rested
was no longer in accord with the reality of the active interventionist state that intermingled state and society.

In this situation, the politically motivated, radical break with liberal administrative law after 1933 also had an innovative effect.
⁴⁷
It accelerated the transformation of administrative law that was already in the air. After the legal barriers had been lowered, administrative reality and political purposes flowed in unimpeded. It became clear that the notion of sovereign “intervention” was no longer sufficient to grasp the main task of administration: “A broad segment of administration serves no other purpose, first of all, than to secure the prerequisites of life for the German people in a very elementary sense.”
⁴⁸
Ernst Forsthoff, following Karl Jaspers,
⁴⁹
called this
Daseinsfürsorge
(1935) or
Daseinsvorsorge
⁵⁰
(both terms mean “providing for and securing existence”), and here he touched on a central issue. In this way the social importance of the administrative law of public welfare and the need for “participation” by the individual entered into the theory of administrative law.
⁵¹
Once the constitutional question had been entrusted to the decision of the Führer and was no longer subject to scholarly discussion,
⁵²
the interest of many theorists of public law shifted to administrative law and administrative theory. Perhaps this, as well as the attempt to keep the party “out of normal administration,”
⁵³
contributed to a sharper accentuation of
Daseinsvorsorge
.