"Non-Germans" Under the Third Reich (13 page)

Of paramount importance to this discussion is the
political effect
of this kind of racism, which transferred the Darwinian principle of the struggle for existence into the realm of the political. The effect was all the greater because the criteria applied to state affairs were now, on the one hand, supposedly measurable by
objective standards
(race) while, on the other, they were built—as was the Führer principle itself—upon irrational, logically unprovable foundations. The premise that one race—the Aryan—was superior to all others flattered the ego of the nation, precisely because it could not be proved but only believed and arbitrarily justified by means of the “eternal laws of nature,” the “right of the stronger,” the “heroic doctrine of the valuation of the blood … and the personality,”
¹²
the “will of the Almighty,” “divine providence,” “history,” and so forth.
¹³

Even the Nazi leaders themselves were probably aware from the outset that there was nothing to this racial theory but fabrications and insubstantial phrases.
¹⁴
Hitler himself rather early ceased to believe in his own racial ideas,
¹⁵
using them merely as a political means, as a way to obfuscate his plans for foreign domination.
¹⁶
For the seductive code word that held the German people to be “chosen” permitted National Socialism’s claim to power and its actual “substance” (namely, the “dynamism of the Movement” and the “will to power” perse)
¹⁷
to be justified at any time and by any means. Already abandoned internally, the racial idea, that is, the notion of the rise of a new human type defined by “blood,” continued to multiply its outward effects without interruption, unleashing—as did the Führer principle—previously unimagined destructive energies.
¹⁸

The result was that the fundamental concepts of government and law, ideas such as, for instance,
nation
and
state,
since they were now “devoid of meaning” and “concerned merely with forms,” could be broken down and replaced, Hitler said, by the “not yet politically exhausted concept of race.”
¹⁹
According to this thinking, the state and its institutions had lost all independent meaning, not only in contrast to the Party but in general as well. The state had merely an instrumental purpose: to preserve the “type” (
Art
), the “
völkisch
substance” of the people,
²⁰
a goal to which Hitler clung with stolid obduracy.
²¹
The judicial system operated on this same premise. In accord with Hitler’s belief that the “state [was] only an organization of … the people” and that the people (
Volk
) alone were the “raison d’être of the state,”
²²
the “democratic-bourgeois constitution” was declared to be a mere “organizational standard,” not a “living order”;
²³
the latter could only be created in harmony with the needs of the “
Volk
community.” This new order or constitution would, it followed, no longer be a set of rules by which the political game was played but the means “for the preservation and safeguarding of the
Volk
as the supreme value.”
²⁴
Consequently, the law was bound to lose its independent function as a set of regulations guiding the life of the state; Nazi legal doctrine saw in it merely a reflection, and thus held the law to be merely an
expression
of the race:
²⁵
“Not the demons of Marxism and liberalism, but only the ethically correct, Nordic and National Socialist spirit [was] viewed as legally applicable…. The racial idea [was] at the core of the entire National Socialist worldview and therefore also of National Socialist legal doctrine.”
²⁶
The function of the law, it follows, was reduced to a mere means of preserving the power (of the race).
²⁷
Accordingly, the theory and function of the law could now be determined only from a “
völkisch
-racial” point of view.

More particularly, the law of the National Socialist “
constitutional state,
” which the former attorney Dr. Roland Freisler once compared to the “concentrated firepower” of a tank,
²⁸
no longer required any kind of theological or philosophical justification. The law of the liberal state was rejected as being “exclusively formal-positivist” (that is, oriented solely to written law) in the sense of the “Paragraph State” (“The pure constitutional state … is the prototype of a community without honor and dignity”).
²⁹
According to the new doctrine of constitutional law, the law now in effect was that of the “substantive constitutional state,” of the “state of substantive justice bound by the idea of the
Volk
.”
³⁰
Alfred Rosenberg expressed it in more popular form in 1934: “Justice and injustice do not go around saying: here we are. Justice is whatever Aryan men deem to be just.”
³¹

This meant nothing less than that the concept of justice was dissolved into vague circumlocutions,
³²
which, as in Nazi mysticism as a whole, could neither be taught nor learned but only “found” and “inwardly beheld”—but, of course, only by those who, owing to their membership in the race, were possessed of the “correct spirit,” that is, the “National Socialist spirit.”
³³
In place of legal guarantees and justice, which were repudiated as mere “abstract” formalisms, the doctrine now put “substantive justice pledged to the
Volk,
” which from now on was to be construed and guaranteed by the “like-minded harmony of feeling and desire of all comrades under the law (
Rechtsgenossen
).”
³⁴

bb. The Reinterpretation of the Concept of Race as the Idea of the
Völkisch
and Its Delineation in Constitutional Theory

The political axiom of the Nazis that race was the sole foundation of the state required, of course, some camouflage and encryption of its own, since racial terminology and concepts could not well be directly employed in the fields of government and the law. However, such encoding could not be done on any serious scientific basis; for, since the racial concept itself was devoid of fixed meaning and characterized merely by muddled catchwords, there was a priori no foundation upon which scientific debate about its meaning and origin could take place. According to the express wish of the Party leadership, therefore, such debates were to be avoided altogether, in order not to endanger the “eternal truths” of the race idea and to prevent its turning “into a political encumbrance.” The sole concern of National Socialist propaganda was to falsify history as “racial destiny” and to drum these articles of faith ceaselessly into the heads of the Germans.
³⁵
Institutions whose job was to advance the race idea and the program of racial hygiene
³⁶
were assigned the task of helping to fix the idea of Germany’s “fateful” call to dominate other peoples firmly in the public consciousness.

Nonetheless, even the most radical race specialists among Party and administrative leaders were faced with the necessity of finding, at the very least, some sort of pseudoscientific or technically acceptable judicial periphrasis for the racial principle, since the introduction of the wholly irrational principles of racial ideology into juridical practice would inevitably lead to considerable difficulties. In particular, the fact that the German people “unfortunately no longer [rested] on a unified core,” consisting rather of various “races,”
³⁷
made for terminological difficulties that in turn would lead to numerous makeshift conclusions.

It was for this reason that talk of the “German race” was officially prohibited by order of the Party leadership.
³⁸
However, in order still to define the German people as a racial community, the concept of race was given a correspondingly broad interpretation by the leading Nazi jurists,
³⁹
and the unity of the
Volksgemeinschaft
was inferred, despite all racial differences, by declaring the various races (“Nordic, Dalo-Nordic, Dinaric, Alpine, East Baltic, Mediterranean races”) to be similar to one another,
⁴⁰
a scheme in which the noblest race, the Nordic, with (according to Hitler) its “master men” (
Herrenmenschen
) or “God-men” (
Gottmenschen
),
⁴¹
stood supreme. If it was at all possible, however, the concept of race was avoided altogether in administrative and legal language; one spoke instead of “equality of type,” of people having the “same blood” or—in recollection of the Germanic idea of the
Blutsgemeinschaft
—of the “community of blood.”
⁴²

In practice, however, the first term to be widely employed was of
Aryan descent;
yet from 1935 on, the expressions
German or related blood
or
German-bloodedness
were substituted, as the term
Aryan
was purely linguistic in origin and not capable of even pseudoscientific justification.
⁴³
But these terms were just as imprecise as the terms previously used,
Aryan
and
non-Aryan,
for they either exhausted themselves in purely negative definitions (
non-Jewish, noncolored
),
⁴⁴
or else they defined
German blood
as being the “blood of the various races” of which the German
Volk
was composed, as the blood of “peoples racially related” to it; but they never did define what
race
or
racially related
actually meant.
⁴⁵

In constitutional law doctrine, the key concept of the
Volk
or the
völkisch
(national or “folkish”) was introduced in place of the idea of race (in contrast to Hitler, by the way, who consistently rejected the notion of the “
völkisch
” principle in favor of “racial” terminology);
⁴⁶
and, unlike the Italian fascists (in whose doctrine the state was the all-important principle), this doctrine declared the
Volk
to be the supreme value in all matters of state.
⁴⁷

This reinterpretation of the idea of race under the heading of the
völkisch
or
Volkstum
(nation as defined by ethnicity) may perhaps be attributed to the facts that the racial ideas of the National Socialists were, at least initially, barely distinguishable from the
völkisch
ideas that were current before 1933 and that those ideas’ terrible consequences were not recognized, not thought through to the end, or else understood merely as theoretical, abstract possibilities, not as a concrete political program. In the theory of constitutional law, in any case, this shift toward the concept of the
völkisch
resulted in the introduction of numerous elements of pre-1933
völkisch
ideas into the racial principles of National Socialism. Only in this way can it be explained that any attempt at all was undertaken to integrate this racial principle into constitutional law.

In resurrecting the concept of the
völkisch,
the theorists harked back to its origins in the eighteenth century, attempting to create a link with the humanistic origins of the idea of nationhood (
Volkstum
), which the German Romantics (Herder, etc.) understood as the “ground that supports culture and the life of the state.”
⁴⁸

This way of proceeding, however, was based on a thorough misperception of the racial ideology behind National Socialism. For one of the essential features of a community or a people in the concept of the
Volk
or of
Volkstum
as it had been understood since its origins in German Romanticism was that it was always oriented toward political characteristics, toward history, language, and culture, and never exclusively toward race in the sense of purely biological descent.

This misunderstanding of the National Socialist concept of race allowed the impression to take hold that National Socialism was the legitimate successor to the
völkisch
tradition in Germany, which had for the most part justified itself on cultural, political, and historical grounds.
⁴⁹
Accordingly, the opinion affirmed in the literature was that the political concepts of the eighteenth and nineteenth centuries had been revived and—to give an example of the extent to which the theorists were capable of misunderstanding Nazi ideology—that the state was now to be restored to its “ancient glory.”
⁵⁰

The result of this introduction of
völkisch
ideas into the Nazi racial concept was that the word
race
was supplanted by terms such as
type, equality of type, German blood
, and
völkisch substance
. Proponents of the new
völkisch
constitutional doctrine, whether they gave greater emphasis to the so-called vitalist element (as did writers such as Otto Koellreuter and Reinhard Höhn)
⁵¹
or to the supposed political factor within the race concept (as Carl Schmitt, Ernst R. Huber, and others did), were unanimous in reveling in the new “
völkisch
thinking.”
⁵²
Society or community became “
Volk
community,” the state the embodiment of the
völkisch
. The talk now was of “
völkisch
law,” the “
völkisch
constitution,” and the “
völkisch
state,” whose foundations were built on race (“blood”) and soil.
⁵³