"Non-Germans" Under the Third Reich (14 page)

To be sure, the central concept of the
völkisch
(i.e., race) did require closer scientific distillation and elucidation in order to avoid the danger of replacing one ill-defined term (
Rasse
) with another equally vague (
the völkisch
). However, any explanation to the effect that the
völkisch
was an expression of the biological racial concept of National Socialism was—as we have seen—impossible, since this would have shut out any possibility of scientific explanation from the outset. Thus, in order to render it at all useful in theoretical debate within the theory of constitutional law, the concept of the
völkisch
(and therefore of race as well) was augmented by the introduction of political characteristics. A majority of the proponents of the so-called political constitutional theory
⁵⁴
argued more or less as follows: a people made up of the same or related races was, admittedly, fundamental to the idea of the
Volk
community and the
völkisch
. This, however, ought not to lead to the presumption that the “biological element” alone was significant. Since the concept of the people in National Socialism, unlike that of liberalism, “reached down into the depths of the irrational forces of human life,” other elements, such as having the same “vital consciousness,” the same culture and history, were just as relevant; and in any case only due consideration of all factors could validate the (political) “unity of the people.”
⁵⁵
According to this doctrine, therefore, the political concept of the people was salvaged by declaring the “racially defined” people to be simultaneously a “political
Volk
,” since “spirit and nature” were indivisible.
⁵⁶
Not so the self-styled “vitalist” or
völkisch
faction among the constitutional theorists,
⁵⁷
who openly championed the notion that the essential feature of the
völkisch
was the “organic” element, that is, “biological” racial equality, but who were unable to resolve either the question of the unifying political force within the state or the dilemma posed by the transfer of racial considerations into the judicial realm. Nevertheless, in order to come to some kind of resolution, the proponents of this school of thought concentrated more upon voluntary emotional (
emotional-voluntaristisch
) elements, attempting to describe the concept of race, which they defined as “equality of type” and as being the “vital consciousness of those of equal type,” and to locate its origins in the mystical obscurity of Teutonic prehistory.
⁵⁸
The nonexistent “equality of type” in the racial composition of the Germans was thus replaced with and cloaked by a putative “similarity” in the emotional sphere; its essence was said to consist of a “distinctive vital consciousness,” of having the “same philosophical (
weltanschaulich
) desires.”
⁵⁹

Thus, in the debate surrounding the question whether the
völkisch
(the racial principle) could best be legally codified using “political” or “vitalistic” (that is, biological) terminology, the proponents of the former school of thought attempted to put the generally accepted, if irrational, principles of Führer and race into some type of judicial system by introducing the concept of the political, thus lifting them, as it were, from the base racial level to the higher plane of constitutional legal theory. The latter school, meanwhile, attempted to develop a “
völkisch
constitutional theory” solely on the basis of the biological laws of nature. But these terminological debates, although carried on at great length, were ultimately without substance, circling as they did around nebulous fictions; they were in reality nothing but shadow play, since the race idea of National Socialism eluded any fixed definition. Such debates reveal merely that it was impossible to accept, on the one hand, irrational concepts like
race
(the
völkisch
),
equality of type
(German blood), and
related by race
(related blood) as being a priori axioms, granting them, after a fashion, the significance of natural law; and, on the other hand, to codify these same concepts into some kind of legal system. In terms of political reality, at least, these debates, which in any case had ceased almost entirely by 1938, were utterly without significance. By means of the double-dealing with which the concepts and principles of the old legal order were formally maintained, while at the same time irrational substrates such as the
völkisch
or racial principle were introduced as relevant criteria in law, and by virtue of the “generous negligence” with which violations of the principle of written law by the extralegislative power of the Führer were ignored or even encouraged,
⁶⁰
constitutional law theory had become more and more entangled in insoluble contradictions, ultimately making itself supererogatory. This drying up and undermining of judicial theory becomes particularly evident when one considers that after 1940, at the latest, no serious scholarly works were published in the field of constitutional law. Those involved perhaps realized, not only in the end phase of the Nazi regime
⁶¹
but even in earlier years, what destructive consequences had resulted from their polemics against the traditional political and constitutional institutions of parliamentary democracy and from their abandonment of all constitutional principles.

b. The National Socialist Concept of
Völkisch
Equality

The difficulties involved in introducing pseudoscientific values into a legal system and the resulting pseudoscientific presentation of racial axioms became particularly plain when it came time to draw concrete conclusions from the concept of the primacy of the “
Volk
community.” If “
völkisch
community” meant the community of those belonging to the same race (“persons of equal type”), then only those people could belong to it who “counted among [this] historically formed blood-community of the Germans,” that is, who were “of German or related blood.”
⁶²
From this it followed that only such persons enjoyed full legal rights, particularly as regarded any claim to equal treatment under the law. In place of civil equality, then, there was now “homogeneity of race” or (“substantial”) “equality of type.”
⁶³
Equality meant
völkisch
equality—this in full accord with the demands of Hitler, for whom conventional equality was a “Jewish invention” and plain nonsense; in his view it was not a matter of “eliminating human inequality but, on the contrary, of intensifying it … and [buttressing] it behind barriers of insurmountable law,” since only thus were domination (the German people as the “new master class” of the world) and development possible.
⁶⁴
Accordingly,
völkisch
constitutional doctrine considered the triad of Führer, race, and “equality of type” the substance of the “
völkisch
constitution,” and so also the essence of National Socialist equality.
⁶⁵

The relative ease with which racial axioms were integrated into constitutional doctrine can perhaps only be explained by the fact that racial thinking was by no means a novelty first brought forth by National Socialism. Rather, it was the continuation and extension of
völkisch
-racist currents that were already widespread in the Kaiserreich and the Weimar period, so that the racism of the National Socialists at first appeared, in the scholarly discussion as well, merely as a continuation of these traditions.

In the cultural sector, there are three currents that should be mentioned: a school of cultural philosophy built upon the works of Joseph de Gobineau and Houston Chamberlain, which held a particular attraction for the intelligentsia; a literary-historical-philosophical school (characterized by authors such as Adolph Grimm, Moeller van den Bruck, Hans Freyer, and others), which enjoyed the broadest dissemination; and a current of natural science (represented by then very popular authors, such as Hans Kretschmer, Hans F. K. Günther, and others), which sought to classify the population of Germany according to physical-racial criteria and emphasized the importance of racial and genetic hygiene. Such racist thinking was also calamitously widespread in the political arena. The native soil of such thinking, that is, of political anti-Semitism, was particularly fecund in the right-wing parties, such as the Deutschnationale Volkspartei (DNVP), but it was also found in the Deutsche Volkspartei (DVP), in the influential
völkisch
associations (the All-German Association [Alldeutscher Verband] and the Federation of Farmers [Bund der Landwirte]), and in numerous other right-wing radical organizations.
⁶⁶
Strong anti-Semitic tendencies also predominated in the youth movement and in the universities.
⁶⁷

The racist thinking of National Socialism differed significantly, however, from that expressed in the demands of the right-wing radical parties and societies, not in content but solely in the unyielding resolve with which it was put into practice.
⁶⁸

The legal form in which this thinking found its expression was the concept of
völkisch inequality
.
⁶⁹
The judicial underpinnings of this concept were complex constructs designed to veil its racial content and replace it with so-called
völkisch
or political terminology. Just as the term
race
was not employed directly but rather entered the legal language indirectly via the terms
Volk community
or
the völkisch
, the term
völkisch equality
had to undergo systematic terminological transmutation before it was suitable and acceptable for use in the judicial administrative realm. Admittedly, this was also bound to have serious consequences in terms of the spirit of the law. For the principle that all citizens were equal in the eyes of the law was after all the copestone of the tradition of constitutionality as it then existed; indeed, legal scholars saw the struggle of the new “equality of type” against traditional “similarity” or “homogeny” (
Gleichartigkeit
) as the single most fundamental problem in National Socialist law.
⁷⁰
However, just as only relatively few authors undertook a legal systematization of National Socialist terminology, fewer still attempted to develop a coherent theory of
völkisch
equality or
völkisch
inequality;
⁷¹
scholarly debates on the problem of equality are—with good reason—either lacking entirely or else can be found only in connection with other problems. Thus, what was meant by equality under Nazi constitutional doctrine cannot be extracted from a coherent set of teachings but must rather be pieced together from numerous scattered, individual statements. The one thing all agreed upon was that in place of the
abstract equality
(among citizens) invoked by liberalism, there was now the
concrete equality
of the “productive and faithful
Volksgenosse
(
Volk
comrade).”
⁷²
This rejection of the standard legal construction was an expression of the idea (first developed by Schmitt and referring back to Hegel’s philosophy of the state)
⁷³
of the “concrete philosophy of distinctions,” which he set against the “destruction” of liberalism.
⁷⁴

The significance of concrete
völkisch
equality, however, remained at first largely unexplained. Its features initially came into focus only in opposition to the liberalism of the Weimar period. And to be sure, opinion in scholarly publications was absolutely unanimous in its condemnation of the first German republic and its legal institutions (“formalism,” “Jewish normativism,” etc.). “Our sense of justice,” one academic expostulated, “would be more profoundly injured by an insistence upon the
fiction
of equality, now recognized as fraudulent, than it ever could have been by an act of open, and therefore contestable, tyranny.”
⁷⁵
The young Turks among the Nazi jurists vied with one another in pillorying everything to do with the Weimar government, every aspect and type of order, as being “empty form” or “abstract normativism,”
⁷⁶
since it was all seen as being oriented toward “abstract” equality and failed to take into account the concrete facts of “real life.” Such polemics were directed above all against equality in the form of individual rights, against the concept of the free citizen without regard to origin and race, against personal equality before the law in criminal and civil cases, and against the equality of states in the law of nations.

Already much to be deplored was the “penetration,” in the period before 1918, of the phrase “equality” into legislation, above all in civil law, and the ensuing “tendency toward … leveling thinking” that “rejected value-oriented [blood-centered, national and religious] differences”; but particularly ruinous was that the principle of equality had gained such allegiance among the legislators,
⁷⁷
indeed that the idea of equality had become so prominent to begin with. This also held for the “liberal principle” of general human equality.
⁷⁸
Today, so went the thinking, it is not a matter of abstract equality but of concrete differences between people in respect to ancestry, language, and so on: C. Schmitt’s “philosophy of concrete distinctions”
⁷⁹
was the order of the day. Under its influence, the principle of “liberalistic” equality was “fortunately now overcome,” since it contradicted the naturally occurring inequalities among people.
⁸⁰