"Non-Germans" Under the Third Reich (12 page)

Besides coercive measures on the part of the NSDAP and the control of positions by the Reich Ministry of Justice, deliberate internal measures were undertaken in personnel policy,
⁸⁵
and massive influence was exerted by the judicial administrations of Reich and
Länder,
as well as by the professional organizations, all of them aimed, by means of ministerial decrees and appeals, at pressuring judges into joining, and more importantly actively supporting, the NSDAP.
⁸⁶
The administrative boards, in contrast, either failed to adopt a clear position or else exerted pressure of their own to join the Party.
⁸⁷
Such coercive measures, which accompanied the work of the courts from the beginning, became more drastic following the great “judicial crisis” of early 1942 that was triggered by Hitler’s April 26, 1942, speech against the justice system in the Reichstag. The new Reich minister of justice, Thierack, openly appealed to the presiding judges on the high courts and the chief public prosecutors to name those judges who were “politically no longer supportable,” without “regard for the persons concerned or their families.” A secret injunction, he said, was about to be issued. No official was to be promoted who was not a member of the NSDAP. Young “high flyers” were to be encouraged; close collaboration with the Party was expected.
⁸⁸
Numerous new instruments of control (instructions issued to presiding judges from the Reich Ministry of Justice [
Richterbriefe
],
⁸⁹
the practice of reviewing court decisions both before and after trial, special directives, etc.)
⁹⁰
replaced or supplemented previously existing measures of control, which, until that time, had been cloaked in the form of “advice” and “recommendations.”

The Reich minister of justice did not shrink from targeting the very highest offices. For example, on August 27, 1943, a disciplinary action was brought against Dr. Drescher, the chief public prosecutor of Hamburg (who, in mid-August of the same year, had already been arrested in broad daylight at the initiative of the Gauleiter of Hamburg) on the grounds that he had given instructions, during the heavy aerial bombardments of Hamburg, to evacuate the prisons of that city, with the result that “felons and Communists” were able to escape. He was sentenced to four months in jail and after serving his time was retired at his own request as unfit to serve, in order to escape the certain outcome of pending disciplinary action (removal from service).
⁹¹
In early 1945, at the initiative of the Reich minister of justice, the presiding judge of the high court of Königsberg, Dr. Draeger, was sentenced to death by the People’s Court (Volksgerichthof) for cowardice and desertion and executed two days before the war’s end, on the grounds that he had left the city without orders. The chief public prosecutor of Marienwerder, against whom proceedings had been initiated for the same offense, committed suicide.

Another source of the great influence of the totalitarian regime on the judiciary could well have been the fact that as a rule the agency heads themselves held high office in the Party, its subdivisions and auxiliaries, or the affiliated professional organizations,
⁹²
and in many cases they owed their professional careers to the Party. The ties to the monopoly party NSDAP via membership or career in the Party are in any case particularly obvious in respect to the presiding judges on the high courts and the chief public prosecutors, especially when compared with the statistics on prior membership in one of the parties of the Weimar period (see table 2).
⁹³

TABLE
2

Party Memberships of Presiding Judges on the High Courts and Chief Public Prosecutors

The NSDAP had major problems with 13 of the presiding judges on the high courts and 4 of the chief public prosecutors, according to their personal files.

^a
This was the presiding judge on the high court of Düsseldorf/Rheinland, Schwister, who before 1933 was a member of Zentrum, a Catholic moderate party. He was said to be one of leading heads of “Rhine Catholicism,” which fought against the monopoly of the NSDAP in state and society. Schwister had many conflicts with the NSDAP and was forced to retire in 1943.

If, in addition to these factors, one recognizes that restraint in questions of politics and fidelity to the state were traditionally regarded as the highest duties of judges and public prosecutors,
⁹⁴
it seems a foreordained conclusion that, under the revolutionary circumstances of the time, this would lead to ever broader, tacitly condoned, if not, indeed, actively promoted, encroachment on the judicial sector by the totalitarian regime. The many allowances that had to be made within the judicial apparatus for colleagues and friends from student days and from the Party also contributed to making fluid, even invisible, the boundaries between traditional notions and the new thinking (which was not merely non-legal but antilegal) of the totalitarian power and to confirming its influence on matters of personal policy and thus also on the administration of justice. Therefore, the conclusion is certainly justified that, as in other branches of administration, the monopoly party NSDAP did not represent the sole dynamic force in the equation; rather, the judiciary itself, taken as a whole, acted with few exceptions as a compliant partner in carrying out the desires of the Party. On the basis of all these factors, then, the judicial system under the Nazi state, at least as regards positions of authority, presents much more the picture of an administrative branch dependent upon instructions from above than that of an independent judiciary. The political powers that be were able to infiltrate and dominate it almost without obstacle. This was the actual source of the corruption of the justice system in all areas of significance.

3. The Principle of
Völkisch
Inequality (Special Law)

a. The National Socialist Idea of the
Volksgemeinschaft
as the Basis of
Völkisch
Inequality

If the Führer principle and the primacy of the Party were expressions of the Nazi leadership’s claim to absolute power, the key terms of the Führer’s authority from the point of view of the ruled are
followership (Gefolgschaft), community (Gemeinschaft),
and
national (or people’s) community (Volksgemeinschaft)
.
¹
The Führer and his authority had sprung from the “
Volk
community,” so that, in Nazi doctrine, the Führer principle and
Volksgemeinschaft
were declared to be coeval, indeed identical.
²
In adopting this doctrine of identity, National Socialism had abandoned the principle whereby every community is
represented
by a leader’s authority, a principle that was the basis of all modern constitutions. National Socialist doctrine was incorrect in claiming, as justification, that National Socialism had restored the unity of
Volksgemeinschaft
and Führer, a unity it proclaimed had existed in the Germanic era. For the idea that the community was to merge itself with and be embodied in one supreme leader was, in fact, a denial of the very paramount significance given to the community (clan,
Landsgemeinde,
vassals and followers) in the Teutonic period. Furthermore, the identity of the Führer’s authority with the (national) community put an end to any and all independent significance of the community; it lost its character as a legal subject or a legal personality and now merely had the task, as already mentioned, of giving its imprimatur to the will of the Führer by ex post facto acclamation. It accorded well with the obfuscatory tactics of the regime that the lost independence of the national community was tricked out and embellished with all sorts of mystical phrases. The Führer was the repository and “agent of community thinking,” the “protagonist” in whom the individual rediscovered himself “in supreme perfection.” The
Volksgemeinschaft
was declared to be the supreme value of all state affairs, the institution of the Führer the “unifying power” between
Volksgemeinschaft
and state organization.
³

The link between Führer and community/followership was based not on written law but upon an indissoluble “invisible bond of fidelity.”
⁴

The National Socialists misused and falsified not only the concept of the unity of
Volksgemeinschaft
and Führer but also the idea of the (national) community itself. Experts in jurisprudence ceaselessly invoked so-called material or substantive community values, such as “duty,” “fidelity,” “honor,” which were held up as essential characteristics of the
Volksgemeinschaft
. In reality, however, the concept of the National Socialist national community met neither the conditions for a true community in the traditional sense (traditional rulership) nor those for a society (rational rulership) but rather represented a union or federation (
Bund
) founded upon a charismatic rulership.
⁵
The basis of the National Socialist
Volksgemeinschaft
consisted rather, as will be demonstrated in detail further on, of a shallow racialist materialism. The supreme value in the doctrine of the primacy of the
Volksgemeinschaft
was race, its supreme goal the growth and expansion of the strongest race into a great state, something that was rationalized both historically and from the point of view of population policy.
⁶

According to this doctrine,
community
could only consist in a community of the same race; people of different races could have no part in it. This essential feature, peculiar to Nazi ideology, can be defined as the racial principle or, more precisely, as the principle of racial or
völkisch
inequality among humans. In light of this principle, whose development is traced below, the profoundly antistate and antilegal structure of Nazi ideology becomes particularly obvious.

aa. The Racial Basis of the Term
Volksgemeinschaft

The dominant role of the race concept in National Socialist doctrine originates with Hitler himself,
⁷
who during his time in Vienna absorbed the purely biologically based teachings of such radical anti-Semites as Jörg von Liebenfels, Georg Ritter von Schönerer, and Hans Lueger; these muddled notions he then combined in an abstruse mix with the politically and economically motivated anti-Semitism that had been widespread in the nations of Europe since the end of the nineteenth century.
⁸

According to this doctrine, whatever race was stronger was therefore the better one, and the weaker therefore the worse; the stronger race’s rule over the weaker was a necessity ordained by nature (a “basic aristocratic idea of nature”).
⁹
The most valuable race was that of the Aryans; it alone was capable of creative labor and was therefore “called” to rule (the entire world). Thus, the essential feature of Nazi racial dogma was not the assertion of racial differences or the enumeration of unscientific racial terminology or the doctrine calling for the suppression of people of other races, but rather the
inference
drawn from this teaching: that the stronger race had the right to rule by virtue of destiny or natural law. The fact that these racial-biological doctrines, more particularly the National Socialist racial dogma, could in no way be defended scientifically and that any attempts to justify them by anthropological methods
¹⁰
were doomed to remain mired in addled racial mysticism, has already been sufficiently argued and requires no closer exposition here.
¹¹