The Law Under the Swastika (19 page)

These individuals, united only by their clear commitment to National Socialism, represented a great variety of approaches. Some were working up suggestions by Schmitt on the basis of right-wing Hegelianism; others came from Smend’s theory of integration; still others combined a rather simplistic legal positivism with the prevailing propaganda slogans of “national community” and “leadership,” “authority downward, responsibility upward,” “common good before individual good,” and so on. The unanimous opinion was that the National Socialist state was in no way comparable to the liberal state; rather, it was, as people now said, the living form of the nation, in the last analysis only an instrument to preserve the nation (Hitler, Rosenberg).

Considering the diversity of the constitutional theorists in Germany in terms of their intellectual profile, their goals, their identification with National Socialism, and—not least—their very different proximity to power, it is not surprising that we cannot find an internally coherent “National Socialist theory of the state.” Given that the structure of National Socialist constitutional law (if one even wants to speak of such a thing) was fluid, its intellectual superstructure was correspondingly unstable.

Constructing something like a “system” out of the countless statements on the theory of the state is therefore a rather pointless exercise. The quest for a system seems to me a wrong approach to begin with, since no system existed and none was supposed to. Where decision-making power is concentrated in a mystically transfigured person, any kind of system would merely have the effect of creating obligations and commitments, which is precisely what the rulers do not want. At the level of constitutional law, to overstate it somewhat, political life was dominated by the struggle for power and the authoritative decision that was revocable at will. At the same time, however—and this is what makes such a state schizophrenic—adherence to the rules could certainly be demanded and implemented at the level of day-to-day administrative decisions, violations of the law could be reprimanded, and even a certain measure of legal protection could be preserved. This explains why certain spheres of administrative law—for instance, the nonpolitical parts of tax law, the law of eminent domain, commercial law, and so on—were able to maintain legal procedures virtually untouched from beginning to end of the Nazi regime.
⁴²

We thus find in the legal journals of the Nazi era a colorful mix of irrational fantasies,
⁴³
self-debasing declarations of submission, and
traditional dogmatic jurisprudence with a ready (positivist) acceptance of the new legal order. This mix reflects the actual situation, the intersecting currents that were shaped above all by a progressive loss of power on the part of those groups that were interested in a traditionally “functioning” executive and were intent on preserving minimal standards of a constitutional state. The well-known antagonism within the regime—“Gau chiefs
⁴⁴
vs. traditional administration,” “Gestapo vs. criminal justice in general,” “the wishes of the party vs. administrative law”—reappear here, this time in the garb of legal debates.

In this convoluted process constitutional theory responded to the various phases in the development of the regime.
⁴⁵
In 1933–1934 it supported the coalition of German Nationals and National Socialists, it accompanied the consolidation and expansion of the Führer-state until 1938, and thereafter it fell into a telling silence. Except for Huber’s
Verfassungsrecht des Großdeutschen Reiches
(Constitutional law of the Greater German Reich [1939]), nothing of importance was written after that time. The retreat into the harmless fields of international law, legal history, administrative theory, and general political science began. There was neither a debate about basic questions of constitutional law nor fundamental methodological reflection. Another “general theory of the state” did not appear: Writing it probably seemed either too risky or simply pointless.

The balance sheet at the end is depressing. A theory of constitutional and administrative law that would have deserved the name of a scholarly field no longer existed. Its death throes had begun with the silent acceptance of the legal justification of the Röhm murders. Incidentally, the Association of Constitutional Lawyers ceased its activity at the same time. The National Socialist state had no need for a theory of constitutional and administrative law. Hitler didn’t think much of professors. Most jurists were late in accepting the bitter realization that they were dispensable, and some never did.

We look in vain, however, for the members of the Association of Constitutional Lawyers in the circles of active resistance. Officers, clergy, students, and workers were represented, but as far as we know not a single professor of constitutional and administrative law. Perhaps this is merely a coincidence. Perhaps it does say something about a stratum of scholars who were closer to power than others, and who were especially familiar with how to relativize the criteria for ‘good’ and ‘evil’.

V.
If we ask, in conclusion, how this stratum of scholars was able to regain its inner stability after 1945, to get over de-Nazification,
to reoccupy chairs, to write democratic textbooks and commentaries, and to preach to young jurists the paean on the constitutional state,
⁴⁶
we get into difficult psychological and historical issues and circumstances.

Before one deplores these developments with moral outrage, one should investigate the political causes and determine in each case where there is continuity in terms of personnel and ideas. Here I can only sketch a few lines:

1. The Association of Constitutional Lawyers, which had ceased its activity in 1933, was reestablished on October 21, 1949. Its honorary President and President by seniority, Richard Thoma, was probably a bit too hymnal when he said that the association could “now reemerge . . . with its head held high.”
⁴⁷

The makeup of the association (eighty-two members) had changed in an interesting way. Forty members had died since 1933. Some who were clearly compromised by their Nazi past had left (Schmitt, Koellreutter, Huber, Höhn). Kelsen had remained in the United States, other emigrants had returned (Erich Kaufmann, Gerhard Leibholz, Wilhelm Hoegner, Hans Nawiasky), and some important democrats had newly joined (Wolfgang Abendroth, Hermann L. Brill, Carlo Schmid). With a total membership of eighty-five professors (today nearly four hundred), this was on the whole quite a substantial change.

2. Of course, the professors of constitutional and administrative law, like all other Germans in the western occupation zones, became caught up in the equally well-intentioned and ineffective machinery of “de-Nazification”—a process that strengthened the feeling of togetherness and the unwillingness to expose black sheep in one’s own ranks. In the end, the solidarity of the professional elite, a solidarity that has also been observed in other homogeneous groups, transcended any political differences.

3. Another characteristic feature of the years after 1945 was that the psychological disposition to let the past be past was particularly strong. Those who concentrated on the task of reconstruction, on the day-to-day questions concerning the constitutions of the federal states, and on the creation of the Basic Law could not at the same time confront and come to terms with the past. By turning to the new one could combine the useful with the pleasant. In short, those “former ones” who gave signs that they were willing to cooperate under democratic conditions were accepted. Hence there was neither a revolutionary upheaval through an across-the-board dismissal of all those who had taught between 1933 and 1945 (this would have been a gross injustice) nor a detailed stocktaking. For about twenty years the difficult questions
were passed over in the belief that everything would work itself out in due course.

But that hope was illusory. The repressed past came back. The Federal Constitutional Court caused the first shock by declaring that all National Socialist civil service positions had terminated on May 8, 1945.
⁴⁸
The protests of the professors of constitutional law were to no avail. The second shock began in 1965 when it turned out that the ghosts of the past were not dead, they had merely been silenced. Cases of ex-Nazis in important positions were uncovered in rapid succession: Th. Maunz, M. Oberländer, H. Globke, K. G. Kiesinger, H. Filbinger, and more. They did serious damage to the political culture of the Federal Republic by shaking the trust especially of the younger generation and by lending weight to the suspicion that formerly active National Socialists could rise to eminent positions in the Federal Republic, while those on the left of the political spectrum were mercilessly punished both socially and professionally.

More than sixty years separate us from the beginnings of the National Socialist state. From a longer historical perspective, that is not much. The past is alive and we run into it every day, if only we look and listen attentively. As professors in Germany, we should
accept it and come to terms with it as our own past
. I mean this “coming to terms” also in a psychoanalytical sense: If we ever want to attain a political culture and constitutional theory that are practiced as something self-evident and are tranquil internally, we cannot do it by looking away and suppressing the past, or by making sweeping accusations. We can achieve it only by analyzing, patiently and precisely, the reasons behind the events of the past.

SIX
The Science of Administrative Law under National Socialism

The “Revolution” of 1933

I.
The science of administrative law was still reeling from the encroachments on administrative law by the Brüning and Papen governments
¹
when it was forced to come to terms with the consequences of the collapse of the Weimar state and the
Machtergreifung
(seizure of power) by the National Socialists.
²
The representatives of public law—that is, those who did not emigrate
³
and who did not give up teaching or were not forced to give it up
⁴
—grappled with the new situation in very different ways.

On the surface we find the often described mood of 1933, which vacillated between enthusiasm and anxious skepticism. Many elated outlines of the “new foundation of administrative law” were published.
⁵
This was stocktaking of the first hour, an attempt to get even with “liberalism, positivism, normativism,” with the liberal
Rechtsstaat
and the binding force of the law, with basic rights and subjective-public rights. At the same time it was also an embrace of Führerdom and loyalty, of “political” and “dynamic” administration, of community and national community as the bedrock and final goal of all individual rights and all administrative activity.
⁶
Much was still up in the air during this first phase, which lasted from January 1933 to about the summer of 1934. Still dominant was the hope that the regime, after overcoming the revolutionary phase of transition, would set up a “national
Rechtsstaat
.”
⁷
When Hans Frank began a much cited speech by saying, “The state of Adolf Hitler is a
Rechtsstaat
,”
⁸
he triggered a lively debate about the concept of the
Rechtsstaat
⁹
In this debate, some—such as H. Frick, Helmut Nicolai, Koellreutter, and Frank—sought to preserve certain elements of the
Rechtsstaat
, while others—such as Reinhard Höhn, Roland Freisler, and Wilhelm Stuckart—detected in this attempt bureaucratic thinking and remnants of liberalism.
To that extent the debate over the
Rechtsstaat
was symptomatic of the coming clashes.

At this point it was still not clear exactly where the battle lines were forming. There were authors who, after a quick embrace of the “new Reich,” retreated again. Others jettisoned their prior credo of administrative law, fearful that developments might “pass them by.”
¹⁰
Still others, motivated by idealistic enthusiasm for the façade of values erected by the National Socialists, made honest attempts to somehow reconcile the new guidelines with the traditional doctrines in administrative law. Frequently this led them to adopt National Socialist terminology on a superficial level, either as a form of camouflage or from the conviction that it would be enough to align liberal administrative law more strongly with “communal thinking,” to emphasize “common good over self-interest,” and to dismantle “liberal excesses.”
¹¹

Ardent National Socialists, however, opposed these positions strenuously, branding them “liberal remnants” and rejecting compromises with the old thinking. In language filled with warlike images, they called for the expulsion and destruction of the “tenacious mass of tradition.”
¹²
Traditionalists, meanwhile, argued that their position was by no means “individualistic” or “liberal” but precisely the one best suited to the new state.

Since it no longer seemed possible to profess open support for the principles of strict subordination to the law, the validity of basic rights, and the legal protection of the individual, authors worked with concealed arguments. “Legal security,”
¹³
the preservation of the laws “as the plan shaped by the Führer,”
¹⁴
and the preservation of administrative jurisdiction as a control inherent in the system should be guaranteed not for the sake of the individual but for the sake of the national community.
¹⁵
One should not overturn the concepts of the state and the corporate body,
¹⁶
merely revalue and redirect them while carefully preserving what was objectively necessary. The clashes between party and state,
¹⁷
between the prerogative state and the normative state,
¹⁸
between authoritarian and totalitarian currents
¹⁹
were here played out in the terminology of administrative law. As in other areas, they remained unresolved right up to the end of the regime. However, the front lines shifted in tandem with the developmental phases of the entire regime. The first phase of broad and often enthusiastic support (1933–1934) was followed by years of internal and external consolidation (1935–1938). In the doctrine of administrative law this caused some of the enthusiasts of the first hour to fall silent, but it also led to the emergence of a group of “leading National Socialist theorists of administrative law,” and especially to the first handbooks that tried to
digest the new legal situation.
²⁰
After 1938 more moderate authors were heard once again more loudly alongside the voices directly beholden to the Nazis. The pressures of war brought a certain loosening, as a result of which themes that had already been declared “finished” in the euphoria of the first years reappeared in the discussion about administrative law.