The Law Under the Swastika (25 page)

II.
Just as important as the internal distortion of administrative jurisdiction under the ideological pressure of the regime was the process that deprived it of official authority through legislation.

1. What the National Socialists encountered in 1933 under the label “administrative jurisdiction” lacked institutional uniformity, embraced different kinds of authority, and followed a variety of procedural rules. In Prussia, Bavaria, Hessia, and Anhalt, administrative jurisdiction had three tiers; in Saxony, Baden, Oldenburg, Thuringia, Mecklenburg, Lippe, Bremen, and Hamburg, it had two tiers; in Württemberg, Lübeck, and Braunschweig, one tier. On the lower and middle tiers it resembled internal administrative supervision more than genuine jurisdiction.
³¹
Even at the Administrative High Courts, administration was still strongly involved, at least through lay judges. In Saxony, Württemberg, Thuringia, and Bremen, jurisdiction was determined by the general clause, and otherwise the principle of enumeration applied.
³²
Prussia had the general clause for police matters, otherwise enumeration. An administrative jurisdiction for the Reich existed only in special areas.
³³
Individual tasks of the Reich Administrative Court, which was provided for in the Weimar Constitution (Articles 31, section 2; 107; 166), were taken up by the Reich Court (Electoral Court; § 9 IV, Law for the Protection of the Republic, March 25, 1930).

2. This rather confusing situation of administrative jurisdiction essentially continued after 1933. However, as Danckwerts put it at the time, “it has been freed from those components that were clearly incompatible with the basic principles of the National Socialist state, above all the nomination of lay judges through election. The place of election has been taken by appointment. In addition, many regulations
have been eliminated which pursued the extreme goal of placing the position of administrative authorities on a par with that of national comrades when it comes to procedural law.”
³⁴
The elimination of the decisionmaking function on the lower and middle levels in Prussia still seemed to indicate that a genuine administrative jurisdiction was to be preserved.
³⁵
However, the curtailment of jurisdiction in all questions of any political relevance made it very clear where the new state was headed.

There were, in any case, no legal defenses against the elimination of Jews, Social Democrats, Communists, and others from civil service positions.
³⁶
Communities and schools were no longer allowed to file complaints against supervisory agencies.
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The course was clear: Legal protection was a casualty whenever the new power wanted to have its way politically, when it intimidated its opponents and deprived them of their rights (for example, by stripping them of their citizenship).
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Legal protection dropped by the wayside especially when it came to the political police, which laid claim to a sphere of action free of the law.
³⁹

With the outbreak of the war, the fundamental distrust of administrative jurisdiction joined hands with the state of emergency. Reducing administrative jurisdiction to a minimum, something the party had long since wanted, no longer required any legitimation. The Führer’s decree concerning the simplification of administration (August 28, 1939) demanded “unceasing effort and quick decisions free of bureaucratic impediments.”
⁴⁰
It replaced the action to rescind before an administrative court with a complaint to the superior agency or supervisory agency (art. IV); the latter, however, could reopen access to the administrative court through “admission.” Appeal was possible only if the administrative court explicitly permitted it because of the importance of a case or its special circumstances. The administrative courts of the first instance were abolished, and the presence of laymen on the bench was ended.
⁴¹

Since “admittance” to appeal was the result of a discretionary decision, which was at the time regarded as immune to challenge,
⁴²
the Reich Interior Ministry tried to weigh in on the side of administrative justice. A circular decree on administrative jurisdiction (August 11, 1941) restored judicial review as the normal case. To guarantee legal unity, the decree maintained that it was necessary “to admit the procedures of administrative courts more extensively than before, thus ensuring the possibility that fundamental cases will be uniformly aligned by the Reich Administrative Court.”
⁴³
This decree turned the intent of the Führer decree of August 28 virtually on its head. Later it was
also openly said that the principle of admittance in the Führer decree had been “merely a temporary phenomenon.”
⁴⁴

As far as substantive jurisdiction is concerned, there was a “progressive dismantling” (Ch. F. Menger), while new jurisdictions were constantly added, especially during the war.
⁴⁵
However, it would be wrong to think that losses and gains kept some kind of balance. Essential powers were lost, unimportant ones were added.

This loss of competence was most evident when it came to the police. When decisions had to be rendered on the first measures of “protective custody” taken in accordance with the Reichstag Fire Decree of February 28, 1933, legal writings, and the courts themselves, questioned whether the courts had the competence to do so in light of the general police clause in the Prussian Police Administration Law.
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However, the Prussian Administrative High Court resisted those notions. It clung to the principle that affairs of the “political police” were open to judicial challenge, and it tried to narrow police powers by restricting the purposes of the Reichstag Fire Decree.
⁴⁷
But this strictly positivist line of defense inherent in the law had to fail when the legislative branch began to act, for example, by confiscating Communists’ assets. When a Communist’s motorcycle was seized, the Prussian Administrative High Court had to accept this as an incontestable “act of state sovereignty of a special kind.”
⁴⁸
Where no special laws existed, the Prussian Administrative High Court for some time searched for a compromise with the Gestapo. It granted that Gestapo orders in the central sphere of the “state police” could not be challenged,
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but maintained that the jurisdiction of the regular police authorities had remained unaffected in the area of the political police.
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However, this course could not be maintained, least of all with the somewhat helpless argument that merely designating something as “political” was not sufficient to rule out supervision by administrative courts.
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When the Prussian legislature ended the uncertainty through the Gestapo Law of February 10, 1936,
⁵²
the Prussian Administrative High Court, which had no other option, relented immediately and declared that its previous decisions had been superseded.
⁵³
It retracted its authority of review even further with the decision of November 10, 1938.
⁵⁴

The classic field of reviewing administrative acts by the police had now in part slipped from, in part been wrested from, the hands of administrative jurisdiction. After 1938 it was enough to label a matter “political” to block judicial review. Even the question of whether the label was rightly given was no longer justiciable. It appears that the decision by the Administrative Court of Baden on January 11, 1938, which Ernst Fraenkel mentions, was in fact “the last decision by a
German administrative court in a review of political measures by the police.”
⁵⁵

However, the total victory of the Gestapo in this matter was possible only because the courts were from the beginning willing to accept the broadest interpretation of the word
political
. Political motives were sufficient even to deny a driver’s license,
⁵⁶
a peddler’s license,
⁵⁷
or a work permit for a midwife who was a Jehovah’s Witness,
⁵⁸
or to dissolve a Jewish organization.
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Underlying this behavior by the courts was not only the willingness of representatives of a “proper state of affairs” to cooperate with the ruthless “auxiliary police” of the SA, with the Gestapo, and with the local party offices that were de facto untouchable. This was also a case of the persistence of an old mindset, one based on the belief that law and judicial supervision must cease where politics starts. “Politics” in this sense is the sphere devoid of the law in which power acts, and those who hold power define the boundaries where they wish to be controlled and where not. Because of an inbred respect for power, administrative judges—in the history of German law more like servants of the state than bearers of a third power legitimized by popular sovereignty—gave up their jurisdictions faster than was necessary.

Between 1935 and 1944 the authority of administrative jurisdiction was expanded in various areas: disciplinary law, compensations for expropriated property and for war damage, civil service law, commercial law, communal law and communal energy supply, self-governing bodies, and a few special fields.
⁶⁰
If we add to this the allocations of federal law and the situation in the so-called Ostmark,
⁶¹
we get the picture of a considerable increase in power. But this picture is deceptive, for if we compare the powers with the cases actually decided by the Administrative High Courts and the Reich Administrative Court, we see that the granting of jurisdictions did not lead to proceedings in these areas. There could be a great many different reasons for this in addition to that of barring the admission of cases. Proceedings were in general initiated much more rarely, since a system of legal protection in which only remnants were still functioning invariably promoted the tendency to pursue out-of-court arrangements. Those seeking a legal remedy were frequently discouraged from turning to the courts. Moreover, the conditions of war forced individuals to quickly accept unfavorable compensation if the alternative was little or nothing. Finally, there is no doubt that many cases were left unfinished in the chaotic final phase of the regime.

On the whole, notwithstanding the rapid allocation of jurisdictions, Menger was correct in saying that there was a “step-by-step dismantling”
of the essential tasks. In the end, administrative jurisdiction’s traditional function of providing legal protection had been virtually destroyed.

3. The gap between façade and real significance is particularly glaring in the establishment of the Reich Administrative Court. When it was set up by a Führer decree of April 3, 1941,
⁶²
it was celebrated as the fulfillment of a reform wish long entertained and repeatedly frustrated, as “the most important event that the war has produced in the field of German administrative law.”
⁶³
Finally it seemed possible to do away with the jumbled court system in the states of the “Altreich,” in Austria, and in the conquered territories, by consolidating the many diverse special jurisdictions.
⁶⁴
Uniform procedural rules came into sight, as did a clear regulation of jurisdictions.

In fact, none of this was accomplished. The main purpose of the establishment of the Reich Administrative Court was from the outset to simplify the administration and achieve the “necessary savings in personnel and administrative costs.”
⁶⁵
The Reich Interior Ministry had been given the authority to reorganize the court system but made no use of it. Procedural rules were as numerous as the senates that had been absorbed into the Reich Administrative Court. The more irrelevant jurisdictions were in actuality, the more they seemed to proliferate. Geographically the effectiveness of the Reich Administrative Court was limited to Prussia, Austria, and the “Sudeten district.”
⁶⁶
W. Scheerbarth recalled that “there were only few cases.”
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The independence of the judges was no longer intact, in spite of the façade of paragraph 1 of the Law on the Constitution of the Courts, and in spite of the emphatic affirmation that binding instructions were not permissible. The seventy-nine regular members could be transferred, the eleven honorary members were all functionaries of the Nazi party, the fifteen special judges held office for a limited time—all in all the court was an emasculated institution. What saved it from complete inner decay was probably the fact that its personnel overlapped with the Prussian Administrative High Court and other administrative courts.
⁶⁸

III.
An attempt to examine the decisions by the Administrative High Courts to make out lines of development and differentiate between the various courts confronts us with a host of difficulties. The number of published decisions alone is overwhelming,
⁶⁹
the different starting points in state law make comparison more difficult, and the reported facts of the cases are abbreviated and rendered anonymous (sometimes they are absent). Because there are few specialized studies,
the personnel policy behind some changes in decisionmaking
⁷⁰
or noticeable deviations from the prevailing line by certain panels remains elusive at this time. Apparently there is also uncertainty about the criteria of “judgment” in individual cases,
⁷¹
as was demonstrated, for instance, in the question of military justice.
⁷²
Scholars ought to agree that “trans-temporal” standards of constitutionality do not exist or at least not in universally binding form, and that the standard attained in the Federal Republic cannot be used retroactively as a historical yardstick for the 1930s. That said, there was a consensus on what constituted the ideal of a
Rechtsstaat
⁷³
a consensus harking back to the constitutional and administrative praxis of the monarchy and the Weimar period. Evidence of this is the effectiveness of the compromise formula of the “national
Rechtsstaat
” in the early years of the regime, as well as the opposition from within the field to Carl Schmitt’s attempt to wrench the traditional concept of the constitutional state out of its liberal framework.
⁷⁴
This normative concept of the constitutional state as it existed at the time (it, too, undoubtedly a construct after the fact) would have to be defined more precisely and its underlying premises laid bare before we could use it as a guideline for evaluating the decisions of administrative courts between 1933 and 1945.