Book Review - Hitler's Justice: The Courts of the Third Reich
Rabbi Yitzchok Breitowitz

Book Review

Hitler's Justice: The Courts of the Third Reich by Ingo Muller
(translated by Deborah Lucas Schneider with introduction by Detlev Vagts)
(Harvard University Press, 1991)

Reviewed by Yitzchok A. Breitowitz, assistant professor of law at the University of Maryland and Rabbi of the Woodside Synagogue in Silver Spring.

Since the end of the World War II, many have wondered about the roles of lawyers, judges, and law professors in Hitler's rise to power and the role they continued to play for the duration of the Third Reich. How could persons committed to the rule of law and steeped in fundamental notions of due process and respect for individual dignity become active participants in a regime of lawlessness and unparalleled brutality? In the aftermath of the war, there were a number of attempts made to justify or at least excuse the conduct of the legal profession, the most prominent of which was the work authored by Hubert Schorn, a former County Judge. Schorn argued that: (1) judicial resistance to the arbitrary edicts of the Reich was in fact widespread; (2) judges were "victims" of their legal training which stressed "positivism," a definition of law that was divorced from any moral vision and which must be automatically obeyed and mechanically applied; (3) judges were legitimately fearful of losing not only their jobs but their lives and thus acted under duress; (4) judges retained their position in the honest belief that they would be better than any successors the Nazis would have chosen. Many have noted the inconsistent strands of Schorn's argument (akin to the criminal defendant who asserts both that he didn't commit the crime and that he was forced into doing it through duress) but his work provided virtually every jurist of the Nazi era with a panoply of excuses to choose from. Still others maintain that the Nazi regime was sui generis - a temporary aberration that is disconnected from either the German past or its present.

In 1987, Ingo Muller, an official in the Justice Department of Bremen and a former law professor, published a meticulously documented work in German which sought to demolish the widely held Schorn thesis. In Hitler's Justice - which became a best-seller in Germany - Muller convincingly argues that the extent of active resistance was dismally small, that many jurists were active collaborators in the worst excesses of the Nazi regime beyond the call of duty or the limits of positivistic thinking, and most shocking of all many of the offenders successfully reintegrated themselves into the judicial system of West Germany. He also argues that for from being an aberration, Nazi attitudes were rooted in Weimar jurisprudence and to a large extent, survive intact in the law today. Muller's book has now appeared in English, lucidly translated by Deborah Lucas Schneider.

Coming on the heels of German reunification and shortly before the formal reunification of Europe in 1992, it is perhaps not the most auspicious time to reopen the painful old wounds of World War II and the Holocaust yet Muller's work contains important lessons and as George Santayana reminds us, those who don't learn from history may be condemned to repeat it.

The book is divided into three parts. The first and shortest portion of the book describes the judicial system that existed under the Weimar Republic and demonstrates that, rather than being an aberration, much of the jurisprudence of the Nazi era stemmed directly from authoritarian attitudes prevalent among the educated middle class in Weimar Germany and that were enthusiastically embraced by its jurists and legal scholars.

The longest portion of the book describes the operation of the German legal system from 1933 to the unconditional surrender to the allied powers in 1945. In eighteen well-documented chapters, Muller paints a terrifying portrait of a judicial and administrative system where legal niceties are at least occasionally observed but where decency and justice have ceased to exist-a nightmarish caricature of law without moral value. Legalization of euthanasia and sterilization, the creation of concentration camps, the ruthless crushing of political opposition, the cancerous growth of racist and anti-semitic laws labelling Jews as civilly-dead are introduced in rapid succession with nary a word of protest from the lawyers and judges who then proceed to apply the laws as routinely as one would apply some technical provision of the Internal Revenue Code. The death penalty was meted out for even trivial offenses if the State (read: judge, read: the Nazi party) regarded the offense as "undermining the security of the state" or the purity of the Aryan race. Thus, Leo Katzenberger was executed for merely maintaining a friendship with a German female tenant (pp. 113-115). Nor was this persecution limited to Jews. Two Greeks, one 19 and the other 20, were shot for removing a pair of discarded shoes from an abandoned bombed-out building (p. 169).

Where the Nazi regime could not obtain its desired results through the official judicial system, it simply created special courts not subject even on paper to the minimal constraints of due process. The most infamous of these was the People's Court specializing in expeditious justice against those who questioned the wisdom of the Fuehrer (even if the "attack" was nothing more than a casual comment made over the dinner table). When all else failed - and for some reason an accused was acquitted, the doctrine of preventive detention allowed for his immediate rearrest by the Gestapo on no legal grounds at all. We read in astonishment that the Gestapo would often arrest a person in the very courtroom in which he had just been acquitted. To the extent this practice elicited protest, the Gestapo was merely requested to wait until the defendant left the room in order not to assault the dignity of the court (pp. 175-176). In a sense, being acquitted was even worse than a conviction; while prison sentences had fixed terms, preventive detention was functionally equivalent to a death sentence following torture. Under the infamous "night and fog" decrees, persons simply vanished without a trace and even their families were not notified (pp. 170-173).

Basic notions of fundamental fairness in the enactment of criminal legislation simply didn't exist. Ex post-facto laws were common; people could be punished for acts that were not even criminal when they were committed. Indeed, people could be punished even for acts that were never made expressly criminal if such acts were "similar" to those that were (doctrine of analogy in criminal law). The state had the right to appeal an acquittal or what it regarded as a lenient sentence. or it could simply forego the appeals route altogether and invoke preventive detention. Contrary to the central idea that conduct proscribed as criminal should be identified with specificity, criminal statutes were often phrased in vague, general terms that could, and often did, apply to virtually anything giving defendants no advance warning that their conduct could be prosecutable. Rules of evidence (at least on the prosecution side) were nil; defendants were routinely convicted and even sentenced to death through uncorroborated hearsay or guilt by association. (In one case, a defendant was sentenced on the basis of out-of-court growling of a dog) (p. 166). Nor was there any notion of a meaningful right to counsel. Attorneys for the defense were regarded, and regarded themselves, as agents of the state and would have no hesitation to turn against their "client." Nor were these miscarriages of justice limited to the sphere of criminal prosecution. Even routine cases of contract, labor law, the issuance of drivers' licenses, and child custody were permeated with the racist hatreds that were at the core of National Socialist ideology.

Stories of Nazi brutality are of course nothing new. Indeed, one might say that whatever perversions of justice occurred in the operation of the courts pale into insignificance when compared to the lawless brutality of the ghettos and concentration camps. Yet there is a special significance and dimension to vignettes of systemic judicial terror. First, we learn that the brutalistic Nazi regime implemented its "crimes" not through sheer force alone but through a patina of legality; statutes were duly enacted, regulations drafted by competent and often talented legal technicians, judicial opinions were carefully crafted all to explain and justify what would otherwise be nothing more than state-sponsored terrorism. Utilization of at least the rhetoric of the "rule of law" - in spite of Hitler's own personal contempt for the concept and it practitioners - served a vital legitimizing function for the Reich. Legalism lent the Reich's excesses the appearance of respectability and legality, a sense of continuity with the Weimar traditions of the past, a sense of false comfort and security to the citizenry that the reality of barbaric terror was in fact cabined by civilized traditions and orderly procedures which at least externally bore superficial resemblances to comparable institutions in other countries and those that had previously existed in Germany itself. This legitimation could well have been a potent psychological factor in deluding the German people into accepting what was going on. It was also an important first step; had Hitler been unable to operate through the established legal institutions of the country in all likelihood much of his program would have been nipped in the bud. It was only by wresting control of the legal structure that the Third Reich was ultimately able to ignore it. In short, it may be surmised that without the cooperation and cooption of the legal system, and its abrogation of individual rights under the guise of law, none of the later brutalities could ever have been tolerated or accepted. (Moreover, couching political and religious persecution in "laws" and having those laws enforced through judicial proceedings create a sense of bloodless abstraction - where the application of a given statute becomes an exercise in technical skill rather than the imposition of unjust suffering on a human being - and this in turn could be partial explanation why so many judges just did their job without ever considering just what it was they were doing.)

Second, we like to think that civilization, a sophisticated legal system and respect for the rule of law stand as firm bulwarks for the protection of individual liberties against infringement by the state. Yet Muller's book reminds us of the disheartening truth - the fragility of even long-standing legal systems and the fact that not only will they crack under stress but may in fact be enlisted as a potent tool in the legitimation of oppression and the powers of evil. Remember: the Nazis did what they did not by ignoring law but by manipulating it.

Third, the book reminds us that contrary to the self-serving assertions of postwar jurists, the extent of resistance to the Nazi terror on the part of the legal profession was minuscule. While many jurists were removed and executed because they were Jewish and other judges resigned in protest over attacks on their pension rights, Muller claims that only one jurist officially protested Nazi injustices and was forced to take early retirement (pp. 193-197). Nor is it wholly true that jurists were simply "victims" of their "positivistic" orientation to mechanically follow and apply the law. While legal positivism may well have contributed to a psychological detachment from the antisocial consequences of their rulings and in an emotional sense may have made it easier for judges to live with their consciences, their creative and enthusiastic application of Nazi doctrine was closer in many cases to active and coequal collaboration than to passive acquiescence. It is also argued that jurists had no meaningful choice; resisting National Socialism would not only have cost them their careers but their lives as well. It is significant, however, that in the one case of recorded resistance, that of Kreyssig early retirement was all that was required and if many more judges had truly protested the tenets of Nazism, one wonders whether Hitler, at least in the early years of the Reich, would have had the effrontery to even dismiss them.

Undoubtedly, Muller paints with a fairly broad brush. Certainly, there were many judges who openly and enthusiastically embraced the racist tenets of National Socialism. Witness the performance of Roland Freisler, the President of the People's Court whose rantings were so offensive that the Nazis themselves refused to release a film of his proceedings originally made for public relations purposes (p. 150). Others, equally if not more culpable, were rank opportunists willing to jump on any bandwagon to advance their careers (pp. 41-45). Others may indeed have adopted a stance of relative passivity out of sheer fear and yet a final group went around their business in corporate and commercial law with little or no daily involvement in racist/Aryan policies. While members of the legal profession are not all equally culpable, the message that emerges from Muller's book is crystal-clear. Neither the bar nor the judiciary made any organized attempts to oppose any aspects of Hitler's regime; the bar and judiciary as bodies heartily endorsed racial exclusionary policies; the number of individual resisters was extremely small. The very best that can be said for the legal profession is that they had no impact in stopping Nazism and in all likelihood, had complicity in its growth. The choice is between impotence and culpability - they were certainly not an active force for good.

The question that Muller does not answer, and on which we can only speculate, is whether widespread legal resistance would have made a difference. On one level, of course, the answer may be irrelevant. The duty to oppose evil does not depend on any calculus of success. On another level, I would submit that resistance may very well have been effective. Particularly in the early years of the Reich, the 1935-1936 period when Hitler was still consolidating his power, the legitimation of his decrees by the courts and the legal profession was a crucial element in extending the government's authority. Each small victory, each incursion into personal liberties without protest enabled Nazism to extend its insidious tentacles further. The policy of appeasement in domestic affairs worked as effectively as it later did in the area of foreign policy with the same disastrous results. Perhaps more so than for any other segment of German society, the judiciary's abdication of responsibility was not only a personal moral failure but a catastrophe for the world at large. (Again, however, I speak from hindsight - if anything, this should teach us to be vigilant about our own liberties).

The third part of the book focuses on the aftermath and here, the author presents us with a number of shocking conclusions. Despite the wavering, half-hearted attempts at the de-Nazification that the allied powers sought to impose on post-war Germany, many jurists with strong affiliations to Nazism were reinstated and in many cases promoted. Initial postwar appointments of opponents of the Reich were later rescinded on the grounds of disloyalty to the state while faithful civil servants of the 1933-1945 period were given priority in hiring. To take one extreme example, an S.S. trooper involved in atrocities against the Jews in the Ukraine turns up again 25 years later issuing rulings against Communists and student protestors (p. 217). A former Nazi winds up as head of the Central Office of State Administration for the Prosecution of National Socialist Crimes and served in that capabity for six years (p. 215).

Perhaps even more disturbing than continuity of personnel - which due to the numbers of Germans pledging allegiance to Nazism was essentially an administrative necessity - are the strong undercurrents of hostility found in many judicial decisions against opponents of the Reich; the continuing insistence of the courts that actions taken pursuant to the laws of the Reich were "legal" in accepting the defense of legal necessity; and in the refusal of the Bundestag to this very day to set aside the judicial decisions of the Nazi era, even those of the infamous People's Court. Muller also demonstrates how postwar courts have shown remarkable solicitude and forgiveness for the administrators of Nazi justice while taking an unusually hard-line on other radical groups. Victims received little or nothing through the postwar judicial system while perpetrators continued unscathed through retirement or natural death. Finally, much of the legislation currently on the books embody racial concepts drawn directly from National Socialist policy with only cosmetic changes.

In short, Muller has presented us with a profoundly-troubling book, but an important one - a work that invites pensive reflection on what might have been; a work that reminds us how fragile a legal system is against the powers of darkness; a work that teaches us that civilization, culture, and an ostensible commitment to and tradition of the rule of law are at best frail barriers against the onslaught of tyranny and how moral courage is a rare commodity in any age. He also reminds us that Nazism was not an anomalous virus coming down from outer space but was part and parcel of the German legal culture that preceded 1933 and continues to have echoes that reverberate in 1991, echoes that have not yet been dissipated or erased.

The author has taken well-defined positions on a sharply-debated and controversial period of modern history and indeed, as previously noted sometimes overstates his case. He fails to acknowledge, for example, the West German reparations policy nor does he mention East Germany's fairly radical purging of Nazi elements from its government. Some of his readings of current West German legislation seem unduly condemnatory, particularly in view of West German's strong rules against Neo-Nazi propaganda and its renewed commitment to human rights. The book preceded such recent conciliatory (although largely symbolic) gestures as the formal apologies by East Germany and Austria for atrocities committed during the Holocaust (though technically these do not involve West Germany). On balance, however, Muller's points are well-documented and worthy of our careful consideration and scrutiny.

Note should also be taken of the very helpful introduction and bibliography authored by Detlev Vagts who, although unidentified in the book, is a Professor of Law at Harvard University and a well-known expert in comparative law. Vagts lays out the precise areas of historical debate, qualifies some of Muller's generalizations, and provides suggestions for further reading.