The Law Under the Swastika (3 page)

Two years after the creation of the Federal Republic of Germany in 1949, a new court was set up, the Bundesverfassungsgericht (Federal Constitutional Court). Its task is to translate the norms and values of the constitution into law. Like the U.S. Supreme Court, it is supposed to be the “guardian of the constitution.” Its two panels (of eight judges each) have accomplished this task primarily by ruling on complaints
of unconstitutionality brought by individual citizens. These complaints are very popular and have brought the court high renown.

After World War II, the Federal Republic made an energetic return to the
Rechtsstaat
and has sought to imbue the traditional—and fairly complicated—structure of the judicial system with a democratic spirit and values. Following the collapse of the political system in the German Democratic Republic in 1990–1991, the West German system was expanded to include the former East Germany.

The major issues debated today are whether the multi-layered legal protection provided by the German system is too slow and expensive, and how the traditional forms of legal protection can be adapted to the conditions of modern industrialized society.

General Introduction

Law and Despotism

I.
It may seem paradoxical to speak of law and despotism in the same breath, for to do so raises the dilemma of the existence of “law” in a system that is on the whole “unlawful” and “unjust” or at least commits many unlawful acts. Using terminology familiar since Aristotle, we can phrase the statement as a question: How is it possible at all to speak of law under a tyranny? There are at least two answers.

The first is that no tyranny exercises power with perfect consistency. Even the worst regime has niches of order, remnants of law, islands of calm. There are always individuals who refuse to be completely compromised, who resist political pressure, and who behave “correctly,” not only in their private affairs but also, and especially, in their official capacities. There are always areas of the law in which procedures continue to be “just” and “lawful.” To be sure, the number of such areas will shrink the longer a despotic regime is in power and dissolves all norms, but some will remain, at least for a while. This answer presupposes two things: a concept of law that is material and substantive in content, and a system of values as the underpinning of that concept, whether or not it calls itself “natural law.” In this case the law is either close to morality or merges with it. Only a norm of “good content” acquires the quality of “law.” A person who kills a tyrant acts in accord with morality, and the deed is therefore not unlawful.

The second answer takes a formal starting point. It dispenses with a substantive distinction between law and nonlaw,
¹
and describes as law anything that meets certain formal criteria. These criteria are determined by a given constitution. If the constitution has been reduced to the principle that the Führer’s will is law and determines what is right and wrong, any expression of the state’s will that is made with
a claim to validity is law to the extent that it conforms to that will. This conception of the law is value-neutral and all-embracing. It excludes only those acts that fail to meet even the formal criteria, essentially only outright terror and arbitrary violence. Whatever else presents itself in the guise of a legal norm—possibly even the rules governing a concentration camp—is “law.”
²
Consequently, a person who attempts to kill the tyrant is acting unlawfully, and if the attempt fails, he or she is “lawfully” sentenced and executed by the system. The fact that the individual acted in accord with morality, has a clear conscience, and is revered by posterity as a martyr is a second (moral) level that must be sharply distinguished from the law.

A third possible answer would be to deny that any of the acts of state that occurred in Germany between 1933 and 1945 had the quality of law. This position could be justified on the basis of natural law by maintaining that the regime was from the very outset incapable of rendering law and justice; it was, in the words of Augustine, a “gang of criminals.” Alternatively, it could be justified on the basis of legal positivism, in which case it would have to start from the Enabling Act of March 24, 1933, arguing that since this act was invalid, all law that followed was also invalid. Both arguments run into problems, since the acts of state in question were, at least in part, voluntarily recognized as legal acts at home and abroad. In that sense, effective “law” was rendered in all areas of the law.

The essays on legal history collected in this volume do not, however, focus primarily on philosophical debates concerning whether law and morality are a single entity or separate entities, the quarrel between natural law and positive law, the question about the de facto validity of norms, or the difference between legality and legitimacy. On all these issues a legal historian will try to assume the stance of a detached observer, to avoid being drawn into the debate over the “correct” concept of law. By translating and interpreting texts, the legal historian seeks to observe how law functioned at various times, in different countries, and under different conditions. The approach is thus similar to that of an ethnologist, who seeks, through participatory observation, to decipher a cultural value system that is unfamiliar or appears familiar only by virtue of analogous elements. The debate about methodology in the humanities has repeatedly demonstrated that scholars who use this approach can deceive themselves about their perspective, that their memory can play tricks on them, that they misinterpret messages—in short, that they essentially produce a more or less subjective report that they try to present as the historical or ethnographic truth.

It is obvious what kind of difficulties work against a stance of detached
observation in dealing with National Socialism and the law that was in force in Germany between January 30, 1933, and May 8, 1945. I am German; I grew up after 1945 in a peaceful and prosperous society and was neither directly nor indirectly a victim of that system. While I, like most people of my generation, do not have a sense of personal guilt, I do feel a sense of shared responsibility for that period and its crimes. Finally, I am a lawyer and thus have been shaped also by my study and practice of the prevailing system of law, a system to whose values I feel a strong personal attachment. These are the forces that have shaped my writing. Of course, my methodological conscience demands that I do whatever I can to neutralize their normative influences, to avoid perceiving or depicting the past in a distorted manner.

If we ask whether the first two answers I have sketched can be found in the corpus of National Socialist law, we encounter a complex situation. To begin with, there were important areas of the law that remained seemingly unchanged on the outside and functioned “normally,” just as they had during the Weimar Republic. We know that the National Socialist regime took a strong interest in preserving the impression of “normality.” Its rule was based essentially on its ability to gain the cooperation of the bourgeois economic elites and, above all, the civil servants and judges who were unhappy with the Weimar Republic. Those elites were largely nationalistic and antiparliamentarian in their thinking, but they also had a strong dislike of open terror. Before they could come to terms with the Nazi regime, they needed to be reassured that a “national
Rechtsstaat
” (state based on the rule of law) would now be set up, that everything would be done in accordance with the law, and that excesses would not be tolerated. This deceptive façade was completed by the ruling party’s endorsement of a “positive Christianity” (point 24 of the party program). As far as the legal system was concerned, the initial strategy of the National Socialists was therefore to change only those elements that were indispensable to securing power and demarcating the main ideological positions. All other wishes for reform, it was said, could be fulfilled at some future time, after the “final victory.” This was the approach the National Socialists took with respect to civil and criminal law: They preserved the façade of the “civil
Rechtsstaat
,” did not overburden their own apparatus with overly ambitious reform plans, and in this way avoided scaring away the bourgeois elites. In the Academy for German Law these elites were given a platform where discussion could take place without pressure to translate anything into politics.

In this way the landscape of National Socialist law presented a very diverse picture. The statutory law that was in force during the Weimar
Republic was, in principle, taken over en bloc and continued to be valid unless it was superseded by new legislation. As far as legislation is concerned, we should rather speak of islands of “injustice” interspersed within a system that, on the whole, still functioned as “law.” However, it is well known that this applies at most to the initial years of the regime. As the regime’s output of laws continued, the
Reichsgesetzblatt
(the journal that published new laws) grew ever larger, and the ratio of traditional law to new law was progressively reversed and slowly changed to the detriment of the old order. The more secure the regime felt, the more openly it could jettison elements of the civil
Rechtsstaat
.

This development also changed the relationship between the “normative state”
(Normenstaat)
and the “prerogative state”
(Maßnahmestaat)
, first described by Ernst Fraenkel in his book
Der Doppelstaat
(
The Dual State
[1940]).
³
Fraenkel underscored the fact that “normality” and terror existed side by side, and he saw in this a structural principle of the National Socialist state. Whether the Nazi system would have had to retain a minimum of regularity in order to survive, or whether, failing that, it would have sunk into a chaos of rival power centers and become ungovernable even without the war, is not a question we can answer. But there is much to suggest that the relationship between norm and prerogative (“law” and “injustice”) would not have remained stable. Instead, it would have continued to shift in one direction or another, and not necessarily in a self-destructive one. Authoritarian regimes, too, can develop forces that stabilize the system and generate a surprisingly long life span, as we now know from our experience with both Franco’s Spain and the Soviet Union.

However, it is also characteristic of National Socialist law that the changes were only in part changes in legislation. While it is true that the “legislator”—a disparate conglomeration of lawmakers working side by side, including Hitler and the Reich Chancellery, ministries, the Party Chancellery, the SS, plenipotentiaries, and Gauleiter—produced a wealth of norms, the existing positive law was developed further on a day-to-day basis through a million individual decisions in the administration and the judicial system. What judges and administrative officials thought was right prevailed with the help of these decisions. Scholars have long since recognized that administrators and judges sometimes had no law to go on, sometimes gave a broad interpretation to the law (which was always in need of interpretation), and sometimes, in fact, “overtook” the law or raced ahead of it. Bernd Rüthers’s book
Die unbegrenzte Auslegung
(The unrestrained interpretation of the law [1968]) called attention to this activity by the judges. More than two decades after the war, his work also refuted what the judiciary had
long clung to as an exonerating thesis: namely, that the judicial system had, to a certain extent, become a victim of National Socialist laws because of the legal positivism so deeply ingrained in its representatives as a result of their legal training.
⁴

By now it is widely held that the legal system that operated between 1933 and 1945 and claimed validity was a complex mix involving a judiciary and a bureaucracy that reacted quickly and legislative activity that progressed slowly. It is also clear that the various fields of the law and branches of the court system, in which the regime took varying degrees of interest, showed differing rates of change. However, it is a myth that some areas remained entirely untouched by the political claims of the system. Neither the frequently cited land register law, nor the social security or tax laws, nor the law concerning debts, property, family, and inheritance was in any way immune. Of course there were gradations of change. Areas that were highly technical and thoroughly standardized, and whose ability to function the regime was unable or unwilling to interfere with, were subjected to much less pressure.

II.
The essays in this collection offer insights into only a few of all these areas, above all those of public law. It therefore seems appropriate to begin by making clear what is meant by “National Socialist law” and to provide an overview of it.
⁵

The following can be described as “National Socialist law”: (1) in the narrow sense, the law that was strongly influenced by National Socialist ideology (racial laws, marriage and family laws, the Hereditary Farm Law, labor law); (2) all the statutory and case law that was newly created under National Socialist rule and superseded the older legal order; (3) the entire legal order that was in force, practiced, and taught between 1933 and 1945. This threefold distinction was important to the legal regulations passed by the Allies to “liberate the German people from National Socialism and militarism,”
⁶
to the process of de-Nazification, to the continuing validity of law from the time before the convening of the Bundestag (Article 123 of the Basic Law), and to the rendering of legal decisions on the continuing validity of norms and legal relations from that time.
⁷
It also describes the stages of scholarly study of Nazi law. At first, as one would have expected, the focus was on the injustice and enormous suffering perpetrated by the system and on the legal norms that violated “fundamental principles of justice.”
⁸
Subsequently the field of inquiry slowly broadened to include the remaining legislation, public administration, and the administration of justice, as well as the legal doctrine of National Socialism. Only very
recently, in view of the continuing validity of norms taken over from the imperial period and the Weimar Republic, have scholars come to modify the overly simplistic epochal boundaries of 1933 and 1945, especially those scholars who take a subtler approach to questions concerning the continuity of the legal order of the Weimar Republic.