The Law Under the Swastika (30 page)

Some recognize that the Nazi state, on the basis of the Enabling Act, was in a position to enact valid law and that consequently the People’s Court, too, was established in a valid way.
²⁷
However, they go on to maintain that it was not an “independent” court.
²⁸
The latter statement is indeed true. The court’s dependent status, factually and in terms of personnel, has been confirmed many times by contemporary statements (from Hitler, Freisler, K. Engert, H. Parisius, O. G. Thierack), by the recorded verdicts, by protocols, films, and firsthand accounts.
²⁹
The purpose of the court was to destroy or intimidate the domestic political opposition. The breakdown of procedural forms and
the elimination of all constitutional guarantees, Freisler’s unpredictability and shouting are perfectly consistent with this purpose. Someone who wants to create terror and fear cannot be seriously bothered by the Code of Criminal Procedure—he must cast off what Thierack called the “crutches of the law.” The People’s Court was a “dependent” court borne up by Nazi ideology, a situation that seems perfectly natural in a state that from the outset had rejected the “independence of the judge.”
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To that extent the relevant passage in the Rehse decision, which attested that the court was “independent” in the current sense and that the judges were bound “only by conscience,” is historically untenable.

Still, it was a court, and “independent” in the sense in which the independence of judges was interpreted between 1933 and 1945. It was a “dependent” court if one wants to measure historical reality, and within it the interpretation of § 1 of the Law on the Constitution of the Law Courts that was in force at the time, with a supra-temporal yardstick of independence and dependence. But the criteria for such a yardstick are problematic.

The sentences passed by this court, on the basis of a law that is morally repugnant but was without question “valid” at the time, were certainly valid sentences, which the legislature was later right in annulling. Likewise, Freisler, Rehse, and all the others who were active as “judges” knew very well what they were doing and were fully aware that if the Nazi state failed, the gallows awaited them. Punishment on the basis of § 336 of the Penal Code would have been entirely possible. The thesis that the People’s Court was a court and that its judgments were valid law in the context of the system at the time does not entail the legal consequences the Federal High Court drew in the Rehse decision.

Of course, one can take a more fundamental approach and deny that the Enabling Act was legal. This would allow one to declare all sovereign acts of the Nazi state as nonlaw. By making a clean sweep in this way, one could spare oneself a lot of trouble. Distinctions become superfluous since all are united by the injustice created by all. However, such a “national community” never existed and would not be desirable. Above all, for the sake of their own exoneration, many wouldn’t mind hearing that they lived under a regime that was generally incapable of enacting law. The “everyday fascism” in the guise of legal form would thus vanish.

Moreover, faced with such a simplistic thesis, we need to recall that there were practical reasons why a general invalidation of sovereign acts by the Nazi state was not an option after 1945. A uniform annulment of
all norms, court decisions, and administrative acts would have created insurmountable problems of retroactive liquidation and, if seriously implemented, would have resulted in chaos.

Anyone who pursues a more limited goal—that of invalidating only the verdicts of the People’s Court and of the other special courts set up by the decrees of May 21 and December 31, 1933—must bear in mind that this could be gratefully seized upon as an exoneration for all other courts. However, there is no question that other courts, foremost among them the Reichsgericht, rendered decisions every bit as scandalous as those of the People’s Court. Are the judges of these courts to be told by a declaration of the Bundestag that their decisions were in principle different from those of the People’s Court? Such a declaration could be easily misread to mean that these decisions were “just” decisions—and some would be only too happy to misread it that way.

III.
The second set of issues that has been touched on by the discussion about the White Rose seems to be more important in public awareness. It is also what Verhoeven and Krebs were primarily after. I am talking about the prosecution of Nazi judges by the judicial system of the Federal Republic. It is clear that the Rehse decision on April 30, 1968, brought prosecution to a halt, as prosecutors believed they could not prove the subjective requirement of a “perversion of justice” demanded by the Federal Supreme Court. However, it is misleading to speak of a halt to prosecution, since even by this time nothing much had gotten under way that could have been stopped.

In making the Rehse decision, did the court follow the maxim that “dog does not eat dog,”
³¹
or were the judges thinking about the future interpretation of § 336 of the Penal Code regardless of the impact on this particular case? This question would at least be open to debate, were it not for the lenient treatment of Nazi judges in the de-Nazification proceedings, as well as a long list of unsuccessful attempts to bring criminal proceedings against judges and prosecutors of the People’s Court.
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If we look at these failed attempts in context, even the friendliest observer invariably gets the impression that “prevailing doctrine” and decisions by the Federal Supreme Court, which prop each other up, have been used to construct defensive bulwarks for former judges. In this case, as was rightly observed in an open letter by forty professors in January 1980, the judge’s privilege protects “the most dependent and submissive justice in the history of German law . . . Acknowledging these judges in retrospect as independent and bound only by their conscience surely cannot improve the reputation
of the People’s Court. It stands before the legal consciousness of the nations bloodstained and despised, no matter how the postwar German judicial system deals with it. However, democratic justice has a reputation to lose if it spreads protective paragraphs over the murderers in the robes of the People’s Court and the Special Courts.”
³³

Since the publication of this open letter, it has been repeatedly noted that the judicial system of the Federal Republic has failed to deal with Nazi judges on the level of criminal law.
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Not only did it fail to move resolutely when there was still time, it even placed itself protectively in front of them, by recognizing those who were active at the People’s Court as “judges” and by declaring that judges could be prosecuted as perpetrators only if they could be shown to have acted with the intent of perverting justice. Critics further argued that there were too many examples of courts generously declaring defendants unfit to attend trial or endure incarceration; that proceedings had been dragged out, given the advanced age of many defendants; that courts didn’t do much to procure files and did not pursue extradition proceedings with vigor.
³⁵
On the whole, this gave rise to the suspicion that the judicial system didn’t really want to deal with these matters and was hoping that they would gradually take care of themselves.

There is very little to say against these observations and accusations. The conclusions they reach are correct, even if it seems to me that they pursue the wrong justification by denying that the People’s Court was actually a court. The fact that they have by now condensed into an accusatory ritual and that they sometimes—and not unintentionally—underestimate the difficulties of research that is both precise and constitutionally above reproach cannot destroy the core of truth they contain.

If we wanted to indicate the reasons for this state of affairs, we would have to mention, in addition to the social history of the judiciary,
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the history of how the Nazi past has been dealt with on a psychological level, together with the public opinion that has sustained and enveloped this process. This would lead us into deep layers of collective desire for repression. It would uncover the feelings of solidarity within the judiciary that have been virtually untouched by political upheavals, and in the end we would find that such symbolic punishment of a handful of old men is quite pointless. The dead are not brought back to life by such punishment. The honor of those condemned by the People’s Court has, in any case, nothing to do with the fate of the perpetrators. “Retribution” as the purpose of punishment seems harder to justify now, four or five decades after the events, than ever before. What the prosecutors in Berlin may yet bring to light—and
what may lead to another guilty verdict—is nothing more than a sop to calm a public that is morally outraged and has every right to be so. But it doesn’t really make sense any more. In life, and in the life of a nation, there are some things you can’t make up for later once the time has passed when reparation would have been appropriate.

There are more important things than symbolic declarations in the Bundestag or the attempt to get a few more convictions in the race against time: namely, a more thorough historical examination of Nazi law, an answer to the basic problems of legal theory, as well as the creation of a certain minimum standard of political awareness and political ethics in the culture at large.

PART THREE

The Postwar Aftermath

ELEVEN
The Legal System and Judicial Policy in Germany, 1945–1949

I.
For some time now, the period from 1945 to 1949 has been a separate field of study among German historians. Research institutes and funding have created a new scholarly specialty.
¹

By contrast, the study of the legal history of these years is still in its infancy.
²
There is no comprehensive account of the nullification of Nazi law by the legislation of the military government, the Control Council, the various occupying powers, and later the restored West German Parliament. It was a complex process dependent on many contingencies. A detailed analysis of this process could provide insight into the understanding of the law in this period, and into the prevailing notion of what was considered typically “National Socialist.”
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We also know little about the methodological approach of the judges, who had to operate a superficially “de-Nazified” legal system and render decisions in the new spirit by using traditional methods. Only for the British occupation zone do we now have a study of the reconstruction of the judicial system;
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local studies are rare.
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And when it comes to the de-Nazification and reappointment of judges and prosecutors, we have more memoirs and partially substantiated hypotheses than solid studies. The reasons for this may be that it is the most sensitive and darkest issue, and one that can form the starting point for explaining many of the characteristics of the “failure to come to terms with the past.”

The reasons why legal history has so far been hesitant in examining this period are varied. Apart from its general reluctance to venture beyond the nineteenth century, legal history left the years 1945–1949 in the dark primarily because they were seen as a “transition” and “prehistory” to the Federal Republic. Naturally, the legal situation of Germany, the creation of the sovereignty of the
Länder
, and the Basic Law attracted the most attention from scholars. Historians were evidently more interested in other issues than the judicial system: for
example, Germany’s capitulation, the outbreak of the Gold War, the political reconstruction, the economic rebuilding, and the history of the parties, churches, unions, and so on. To this we must add another observation: After the most important Nazi laws had been invalidated by the military government (Law No. 1) and the Control Council (Law No. 1 of September 20, 1945), all subsequent measures affecting the judicial system were enacted before a public of legal professionals but without popular participation. While the public was certainly aware of Nazi crimes, the Nuremberg trials, and de-Nazification as “legal problems,” it is only natural that its attention was focused primarily on economic and political problems. It hardly took note of the reopening of the courts and the appointment of judges or of the profound basic issues (depoliticization of judges, natural law vs. legal positivism). The judiciary was happy to leave it that way, since it had little inclination or cause to openly discuss its problems over methodology and personnel policies.

From 1947 on, when political developments began to focus on the establishment of the Federal Republic, the central methodological questions had already been discussed and the reconstruction of the judicial system had been largely completed. That is why the session on the “legal system” proved relatively easy during constitutional deliberations at Herrenchiemsee and in the Parliamentary Council. The courts were already working and the professional associations were up and running. Still missing, apart from social jurisdiction, was the organizational superstructure provided by a federal jurisdiction and constitutional guarantees of judicial independence, on the one hand, and the basic legal rights of the citizen, on the other. However, there was essentially consensus on these issues in the programmatic declarations by former émigré groups, the parties, the unions, and expert committees.
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One can indeed say that the creators of the Basic Law “devoted such special care to the judicial power because they were well aware of how the administration of justice had been undermined and perverted by the Nazi regime. The creation of a separate and independent judicial power was thus among the special goals of the creators of the Constitution.”
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Still, compared to the very thorough discussions about other fundamental issues concerning the reconstruction of the state in the Basic Law, there was widespread consensus on which path to take when it came to the judicial system: secure its independence, retain the basic outlines of the existing court system, create a strong constitutional jurisdiction, and assign jurisdiction, except for that of the highest courts, to the
Länder
.
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