The Law Under the Swastika (24 page)

EIGHT
Administrative Jurisdiction under National Socialism

I.
Administrative jurisdiction is the touchstone of the constitutional state. History has shown that in the absence of an enforceable and independent supervisory authority, the rights of citizens and the rules of public law as a whole are constantly in danger of being violated. The underlying premise, that inviolable individual rights ought to exist and that public life should be conducted in accordance with rules of law, is a liberal belief, as is the notion that a court is best suited to act as the supervising authority. It was therefore inevitable that administrative jurisdiction, created at the height of constitutional liberalism (1863–1875),
¹
would clash with the Nazi state. For as vague as that state’s
Weltanschauung
may have been in other respects, the rejection of the liberal
Rechtsstaat
was one of its fundamental principles.

The question whether traditional administrative jurisdiction could be retained appeared as early as the first half of 1933 in the journals of administrative law, where new editors were at the helm.
²
The general uncertainty during the first phase of the so-called national revolution struck at the very heart of administrative jurisdiction, whose intellectual roots in the spirit of the liberal
Rechtsstaat
were evident to all. A state that rejected the separation of powers, formal guarantees, and basic rights, was suspicious of all distinctions, and abolished all supervisory mechanism could have no other goal but the elimination of administrative jurisdiction. Therefore, administrative jurisdiction had to redefine itself or perish.

This problem was not really resolved before 1945. But shifts took place, legislation made a commitment on certain points, and opponents and advocates of supervision through administrative jurisdiction staked out new positions. Behind the debate over the “future of administrative jurisdiction” stood, right up to the end of the regime, the conflicts between the “normative state” and the “prerogative state,” between
state and party, between party chancery and Reich Interior Ministry (allied in this fight with the Reich Justice Ministry and the Academy for German Law), between administration and administrative justice. To that extent the issue was typical of the unresolved contradictions in the entire system.

The hard-core champions of revolutionary activism, of the movement “as such,” and of an explicitly antibourgeois, military principle of leadership had their sights set on the elimination of all norms and institutions that impeded “action.”
³
To them, administrative jurisdiction was at best acceptable as a transition phase, but only if judges were willing to throw the dualism of state and society overboard, to see not subjective-public rights but the objective national order as worthy of protection, and to unconditionally accept as their guiding principle the public interest as defined by the leadership. Since it was an axiom that Führer and followers were united in the national community, all conflicts of interest were “abolished” in this alleged unity.

But this notion was rarely advocated in professional legal publications. For the most part one found the usual rejection of the liberalism of the past, coupled with a “however” when it came to administrative jurisdiction. The liberal origins of administrative jurisdiction, it was argued, were beyond question, but the essential thing was “the intellectual content that is poured into forms that are recognized as useful . . . The new German state, as well, with its tighter organization, wants to remain a
Rechtsstaat
.”
⁴
Administrative jurisdiction was “by no means incompatible with the nature of the authoritarian state and the idea of the Führer.”
⁵
It had always made the public interest real,
⁶
its purpose was to relieve the burden on the central authorities,
⁷
and it was all but indispensable for building the “national
Rechtsstaat
,”
⁸
especially once the long missing capstone, the Reich Administrative Court, was finally put in place.
⁹

Soon the defenders of administrative jurisdiction were able to score a few tactical points. For instance, they attentively noted that the draft of a Reich police administration law, which had been prepared at the Academy for German Law but never enacted, continued to provide for proceedings in contentious administrative matters.
¹⁰
Likewise, paragraphs 29 and 30 of the German Communal Statute of January 30, 1935, assumed that administrative jurisdiction would continue, even if the official explanation asserted that this was “not meant to anticipate the final decision via a Reich administrative law on the question whether and to what extent there is any room in the present state for proceedings in contentious administrative matters.”
¹¹
The same was
the case in paragraphs 146 and 147 of the German Civil Servant Law and in the Reich Disciplinary Law (both January 26, 1937).

Under cover of these regulations, which could now be highlighted emphatically as the “Führer’s will” become law, a fervent propaganda in favor of administrative jurisdiction began to take shape. The danger that it might be eliminated in the initial action in 1933–1934 was over. Still, the basic question continued to smolder. Those in the Nazi party who were suspicious of administrative jurisdiction gradually changed their approach as they came to realize that administrative judges, too, were tractable. Some of the decisions that administrative courts had handed down in the spirit of National Socialist
Weltanschauung
were accordingly praised.
¹²
The task of readjusting administrative jurisdiction to the new state could thus be interpreted as a question of personnel changes and “educational work.” That this readjustment would take longer than in other courts because administrative jurisdiction was traditionally occupied by representatives of liberal thinking was something one could live with.

But opinions were divided even within the innermost circle of Nazi leaders. While radical representatives of the SS and the Gestapo continued to push for the outright abolition of the “reactionary” administrative courts, the representatives of the Reich Interior and Justice Ministries pursued the opposite course. The latter had on its side Hans Frank and his Academy for German Law, the overwhelming majority of scholarly opinion, and the entire body of administrative judges. At the district meeting
(Gaufachberatertagung)
of administrative jurists on June 29–30, 1935, the Ministerialrat Justus Danckwerts spoke out emphatically in support of this “proven institution.”
¹³
Undersecretary Wilhelm Stuckart joined in and formulated what was now the official line: A distinction had to be made between political leadership, which, needless to say, should not be subject to any controls, and the implementation of acts of leadership by the executive. The interests of the whole dictated that the legal order be preserved in this process of implementation. And in order to unburden the central authorities, it was not the administration itself but the legal courts that should see to the preservation of the legal order. In fact, the jurisdiction of these courts should be expanded to take in cases of compensation for breach of official duty, compensation for expropriated property, and judicatory law. Finally, all this should be cast into a “uniform Reich administrative law.”
¹⁴
At the Third Annual Meeting of the Academy for German Law, Reich Interior Minister Frick also committed himself to this course.
¹⁵
Hans Frank declared in 1939 that every administrative act
had to be verifiable, hence, “administrative jurisdiction . . . is indispensable in the National Socialist state.”
¹⁶

The defenders of administrative jurisdiction were happy to make use of these official voices. After 1936 they could concentrate on consolidating their position and could renew their calls for a standardization of administrative procedural law and the organization of the courts. In the process, the question of the Reich Administrative Court was brought up with increasing urgency, since this camp was hoping that its establishment would finally give the Führer’s blessing to their cause and strengthen its supporters in the Reich Interior Ministry, the Reich Ministry of Justice, and the Academy for German Law.
¹⁷
One example of this was the long article on legal policy by the President of the Saxon Administrative High Court, Herbert Schelcher, who used contemporary arguments in an effort to protect the traditional position of administrative jurisdiction, including the independence of its judges.
¹⁸

Still, the situation of administrative jurisdiction was by no means secure. Looking at the legal journals is deceptive, for here the position of the traditionalist representatives of the civil service and of the “national
Rechtsstaat
” prevailed and was able to create a climate favorable to administrative jurisdiction. We can readily see this from the change in editors after 1933.
¹⁹
It was therefore quite true when the radical National Socialist Walther Sommer wrote in 1937, in response to Schelcher, that “there have been articles in all professional journals in favor of administrative jurisdiction.” He stated further that “there are repeated attempts to prove that administrative jurisdiction is compatible with the current state, indeed, that it is a national political necessity for this state. Contrary views have not yet received a hearing.”
²⁰
However, there was another side to the story that was not written about in the journals and that helps explain the many urgent essays on the preservation of administrative jurisdiction: There were constant disturbances in daily practice, disregard for decisions by administrative judges, interference by local party offices or the Gau chiefs, and attacks in the press against “reactionary”—that is, constitutional—decisions.
²¹
Administrative jurisdiction was considered the refuge for liberals and conservatives who were seeking to preserve at least the core of the
Rechtsstaat
. Sommer saw this very clearly: “The personnel of the administrative courts is, in any case, not as National Socialist as that of the active administration”; administrative judges were “liberal national citizens,” paragraph people and file worms with no connection to active administration.
²²

Sommer’s crude summary of arguments against administrative jurisdiction
represented the view of the Nazi party, which was underrepresented in the professional journals. In brief, it went something like this: Administrative jurisdiction is dead paragraphs disconnected from life; internal administrative supervision is closer to the people and cannot be abused by enemies of the government; administrative courts are slow and expensive; the separation of political leadership and apolitical administration does not exist in National Socialism; administrative jurisdiction can be tolerated at most as an advisory committee within the administration, and as the institution that settles civil service salary claims, matters relating to the liability of officials, and compensation for expropriated property.

The other camp naturally fought against this kind of dangerous devaluation of administrative jurisdiction. Time and again it repeated what was now its fortified fall-back position. For instance, while the discussion over the judicial examination of Gestapo arrests (“protective custody”) was fairly intense in the first years after 1933, it was soon discontinued as a pointless exercise.
²³
From the beginning it had been a matter of course that acts of political leadership were exempt from supervision by the courts.
²⁴
Writers repeatedly stressed the subordination of individual rights to the public interest, praised as the advantage of administrative jurisdiction that it lightened the burden of the administration and preserved the unity of the law, affirmed that the National Socialist
Weltanschauung
was the obligatory foundation of judicial independence, now filled with new meaning, and even offered to give up the term
jurisdiction
altogether.
²⁵
The Vice President of the Prussian Administrative High Court tried to prove that his court was clearly in line with the course of the regime.
²⁶
Whether he, an “old fighter” and SS major general, really believed that is another question. Still, it became clear that the champions of administrative jurisdiction were willing to go to considerable lengths to defend their position. Administrative jurisdiction cast off its liberal provenance as unnecessary weight, withdrew without a fight from “political” matters, moved—at least verbally—from standing on the side of the citizen to standing on the side of the state, and opposed the “judicial state.”
²⁷

This was a high price to pay. Administrative jurisdiction lost its intellectual contours by disavowing its true task, that of protecting the individual. To be sure, there were opposing voices. However, by accommodating itself to the rules of language and accepting the subordination of law to the purposes defined by the state, it had in essence already lost its ground. The debate over administrative jurisdiction that dragged on almost to the end of the war excluded the fundamental questions.
²⁸
Authors discussed the remaining spheres of jurisdiction,
the establishment of the Reich Administrative Court,
²⁹
the incorporation of conquered territories, and the shortening of the procedures. It is characteristic of the situation that the Nazi candidate who eventually rose to become President of the Reich Administrative Court was the one who had the least regard for administrative jurisdiction.
³⁰

The professional discussion over administrative jurisdiction during National Socialism thus had a paradoxical outcome. Although administrative jurisdiction was able to hold its ground institutionally to the end of the war, it had been reduced to irrelevance and pushed away from important questions, and it had changed beyond recognition once its defenders themselves disavowed its intellectual foundations. By the time administrative jurisdiction was finally abolished under the pressures of war, it had hardly any practical importance left; at best it had minor symbolic value as a residue of constitutional thinking.